RF Laws That Matter: A Late Summer 2007 Update

Sept. 4, 2007
Flaws in RF legislation could chill innovations used for security, consumer convenience

As the summer progresses, so do several bills regulating the use of RF technology by both private and public enterprises. While it is understandable that policymakers and consumers have questions about the use of RF technology, enacting legislation that regulates and limits the technology's use may not be in the interest of citizens nationwide.

When the telephone, a startling new technology in the late 1800s, was first introduced, there were many questions about it and how it would be used. Some even saw it as the work of the devil and wanted to ban its adoption outright.

Imagine lawmakers back then passing legislation that would have restricted, heavily regulated or banned the use of telephones, whether in the public or private sector. This is the same approach that some states are taking with RF technology as policymakers listen to opponents of RF technology who see it as an inherently dangerous technology much as some of our ancestors saw the telephone.

Such a preemptive approach to legislation, regulating a technology without proof of an articulated harm to citizens, fails on two levels. First, policymakers who are introducing these anti-RF bills are doing so without understanding the vast differences in how the technology works and is applied. This failure may deprive business and government entities, and ultimately consumers, of the benefits that RF technology could deliver if allowed to flourish and evolve without restrictive legislation.

Second, this type of legislation, by regulating and restricting a single technology, may force consumers, businesses and government entities to use less effective technologies so as to avoid the potential for running afoul of the law or being open to civil lawsuits. Again, this may deprive the public of RF solutions that could ultimately make them more secure, save them money and speed their movements in daily life as RF-enabled highway toll systems do.

Further, this type of legislation could harm American competitiveness in the RF industry. In fact, the European Commission, after studying the technology and holding a series of public hearings, decided it would be difficult and unwise to enact legislation to regulate or restrict a technology that is evolving as fast as RF technology is.

An analysis of pending anti-RF legislation reveals a significant lack of understanding about the technology and how it is currently being used in a wide range of applications. The misunderstandings stem from overbroad definitions that sweep all applications that use radio frequency to communicate under a single umbrella term: RFID. The definitions ignore the wide range of frequencies used to communicate and the different types of chips that are often associated with those frequencies.

Many of the bills make assumptions about industry as well, ignoring the fact that industry is committed to implementing RF technology to help lower consumer prices, protect consumer privacy and speed transaction times whether it is on the highway or in the supermarket. Ultimately, industry understands that consumers will drive the adoption of RF technology only if they feel comfortable and safe using it in their daily lives.

What follows is a quick synopsis of those bills and their current status [status given based on reports in late July 2007 - Carroll will be providing a mid- or late-September update on the fates of these bills].

In Arkansas, the Senate passed Senate Bill 846, an act to establish the Arkansas Legislative Task Force on RFID technology. This bill, along with SB 195 which would have limited the use of radio frequency identification tags, died in the House Committee on Advanced Communications and Information Technology when the legislature adjourned in May.

In California, there are five RF bills pending in the legislature. The following bills have all passed out of the Senate and are now in the Assembly:

  • Senate Bill 28 would ban the use of RF technology for California drivers' licenses.
  • Senate Bill 29 would ban the use of RF technology to protect school children in grades K through 12 (despite the fact that many parents testified in favor of using the technology).
  • Senate Bill 30 would regulate and restrict the use of RF technology in government-issued identification documents.
  • Senate Bill 31 provides for criminal penalties for those who would remotely read an individual's personal information using RF technology.
  • Senate Bill 362 prohibits the implantation of an identification device.
  • Senate Bill 388 would require any private entity that sells, furnishes or issues a card or other item containing a radio frequency identification tag that may contain personal information to provide specific information to the recipient. In addition, the bill allows for civil actions for nominal or actual damages, including attorney's fees for the prevailing party.

In Florida, SB 2220 would prohibit implanting of microchips without obtaining full disclosure and consent. This bill died in the Committee on Judiciary.

In Michigan, HB 4133 prohibits the implantation of an RF chip or other microchip without prior consent. Michigan's House and Senate have passed the bill.

In Missouri, SB 13 would require that any consumer commodity or package containing an RF tag or bar code be conspicuously labeled. This bill exemplifies the overbroad language that is common to many of the state-initiated bills on RF technology. For example, the bill does not define what a consumer commodity is but leaves it open to interpretation.

In New Jersey, Assembly Bill 3996 requires businesses to notify consumers if they are using radio frequency identification systems to collect information about consumers. Transactions referred to in the bill are related solely to sales or rentals. The bill has been referred to the Assembly Consumer Affairs Committee.

In Pennsylvania, two bills have emerged that single out RF technology for regulation. HB 993 uses broad language that may implicate employers in the state who issue RF-proximity badges for access control purposes. Specifically, the bill states that "Any person or entity that sells or issues (my emphasis) to a consumer an object (again, my emphasis) that is not disabled, deactivated or removed at the point of issuance shall...make the exact location of the radio frequency tag available...post signs in conspicuous places...allow consumers to remove the tag after the object has been purchased or issued..."

HB 993 awaits a hearing in the Consumer Affairs Committee as does HB 992 which would amend Title 18 of the Pennsylvania Consolidated Statutes to include abusing RF technology to commit identity fraud.

In Rhode Island, SB 474 would ban the use of radio frequency identification devices (the bill contains no definition of exactly what the device is) by a state or municipal agency for the purpose of tracking the movement or identity of any employee, student or client...as a condition of obtaining a benefit or a service. The Rhode Island Senate passed the bill and referred it to the House Judiciary Committee in May.

Alexander Graham Bell helped people understand his wonderful invention by frequently lecturing and giving demonstrations around the world. As RF-focused bills continue to proliferate, industry and users of the technology should follow Bell's example and help policymakers and consumers understand RF technology, its benefits and its diversity. Without this, we may be left with legislation that chills innovation as fears of lawsuits and costly compliance with government regulations discourage RF technology development.

About the author: Kathleen M. Carroll is the director of government relations for HID Global, a leading manufacturer of proximity and smart card technologies in the access control industry. Carroll oversees HID Global's RFID privacy initiatives, including pending RFID legislation in the 50 states. She also serves as the Chairperson of the Security Industry Association’s (SIA) RFID Working Group which is working to educate legislators, business leaders and consumers about radio frequency technology applications and benefits in the physical access control marketplace.