BILL ANALYSIS SB 1834 Page 1 Date of Hearing: June 22, 2004 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Lou Correa, Chair SB 1834 (Bowen) - As Amended: June 14, 2004 SENATE VOTE : 22-9 SUBJECT : Radio frequency identification systems. SUMMARY : Prohibits companies and libraries from using radio frequency identification (RFID) systems on items in order to gather, store, use or share personally-identifiable information about the customer unless specified requirements are met. Specifically, this bill : 1)Prohibits a private entity from using a RFID system on consumer products to gather, store, use or share information that could be used to identify an individual, unless all of the following conditions are met: a) The information is collected only to the extent permitted by law. b) The information has been provided by a customer for the purpose of completing a transaction to purchase or rent an item containing a RFID tag at a retail store. c) The information is not collected at any time before or after the actual transaction. d) The information regards only a customer who actually presents the item for purchase or rent, and is in regard to only that item. 2)Prohibits a library from using RFID systems to collect, store, use, or share information that could be used to identify a borrower, unless all of the following conditions are met: a) The information is collected only to the extent permitted by law. b) The information has been voluntarily provided by the borrower for the purpose of using the library's collection and services or to borrow a RFID-tagged item from the SB 1834 Page 2 library. c) The information is not collected at any time before or after the actual transaction. d) The information is collected with regards only to a borrower who actually attempts to borrow the item and is in regards to only that item. EXISTING LAW prohibits financial institutions from sharing or selling personally identifiable non-public information with unaffiliated third parties without obtaining a consumer's consent. Financial institutions have to provide people with an opportunity to "opt-out" of having their information shared with marketing partners and affiliates. Existing law prohibits stores with "club card" programs from collecting drivers license and Social Security numbers on club card applications and prohibits them from selling or sharing personal customer information. Existing federal law prohibits video stores and libraries from sharing or selling customer records without first getting express consent from the customer. FISCAL EFFECT : Unknown. This bill is keyed non-fiscal. COMMENTS : Purpose of this bill . This bill is intended to place restrictions on the use of RFID and electronic product code (EPC) systems in order to prevent personally identifiable information from being tracked and collected. In practice, this bill would restrict the ability of private entities and libraries to apply and scan RFID tags on consumer products and library books. Any information collected would be restricted to the time of the transaction, be relevant to completing the transaction, and encompass only the item and individual that is part of the transaction. The author argues that this bill is necessary to preempt future abuses or invasions of privacy, while opponents argue that this bill is premature and would unduly restrict a developing technology. Some privacy advocates note their concern about the SB 1834 Page 3 general topic without supporting this particular bill, and instead suggest alternative approaches to the issue. Radio frequency identification technology . RFID is a generic term for technologies that use radio waves to automatically identify items at a distance and store information. In concept, RFID technology functions much like the bar codes and magnetic strips used on credit and identification cards, allowing specific information to be stored, retrieved, added and changed. However, RFID is different in that it uses tiny electronic computer chips that can be read from 25-30 feet away and at indirect angles, removing any need for a person with a hand-held scanner to read the product. As an example, RFID tags are placed on pallets of factory-sealed products to easily tell shippers the quantity, type, date manufactured and destination as they pass through warehouse doors that are equipped with an RFID reader (also called an antenna). Antennas can be placed on walls, shelves, and doorways, and can both read and write data on tags that pass by. According to the author, "RFID tags are expected to replace bar codes on everything from library books to groceries within the next decade, allowing businesses to save millions of dollars by automating their shipping and inventory processes. At about 20 to 50 cents per tag and $1,000 per reader, RFID systems are still too expensive for widespread use. Some experts project, though, that as demand grows, manufacturing costs will drop and within the next decade the use of RFID technology will become much more prevalent." The author cites a number of examples of RFID technology already in use: California's FasTrak automatic bridge toll system, ID chips implanted in pets, pilot projects for tracking consumer product interactions, and shipping systems by large retailers such as WalMart (which already provides an RFID disclosure tag on some products). The author also cites examples of real or proposed RFID uses that raise serious privacy concerns: RFID surveillance of consumer movements in retail establishments, the tracking of humans in hospitals, the possible incorporation of RFID tags into European Union currency, and the tracking of library books and the profiling of library patrons. Arguments in support . According to the author, "SB 1834 doesn't SB 1834 Page 4 change what information businesses can collect on people when they buy products. Instead, it focuses on the collection method - RFID, in this case - and whether that collection method can be used to collect information on customers outside of the standard rental/purchase transaction?" "Privacy advocates are concerned RFID will become as omnipresent as video surveillance and give marketers another way to track people's movements and shopping behaviors. For example, it would be theoretically possible for businesses to tag everything with RFID, allow RFID antennas anywhere to scan the contents of people's purses, wallets, shopping bags, not to mention identifying the makers of the clothes, jewelry, and shoes they're wearing. The ability to collect, aggregate, and manipulate this information could give businesses a powerful marketing tool if they can use it to profile and identify potential customers as they walk through the mall entering stores and restaurants." "SB 1834 attempts to address additional privacy issues created by this new technology by permitting stores and libraries to collect the same information they already collect now using bar codes, while at the same time banning the use of the technology to track people as they shop or after they leave the store." Arguments in opposition . A coalition of opponents argue that RFID is a new technology that is currently being adopted, and that regulation could unintentionally distort the development of the technology. They note that "[s]everal major retail operators have required manufacturers to implement EPC and RFID at the case and pallet level by January 1, 2005. We believe this implementation will have consumer benefit by the swift replenishment of products on shelves, theft control and the identification of counterfeit products. Further product recalls could be conducted in a much more efficient and effective manner?" Opponents also argue that the potential impacts of RFID technology on privacy are already being examined, noting the creation of the MIT AutoID Center in 1999 to do field tests and pilots, as well as the adoption of industry guidelines dealing with notice, choice, education, record use, record retention, and security." Opponents contend that "SB 1843 would place a number of SB 1834 Page 5 restrictions on the use of EPC and RFID at a time when the technology is at its infancy. We believe these restrictions could have a number of unintended consequences that could blunt the potential benefits consumers could derive from the technology. " The California Grocers Association add: "RFID technology is at the same stage the Internet was about twenty years ago. And while there have been a number of less-than-desirable by-products from Internet use, most Californians would suggest that the benefits far outweigh any such negatives. We are hopeful that we can say the same ten or twenty years from now regarding RFID." Privacy advocates neutral on SB 1834; raise general concerns about RFID . A coalition of privacy advocates (American Civil Liberties Union, Electronic Frontier Foundation, and the Privacy Rights Clearinghouse), while not in support of this bill, believe that if "[u]sed improperly, [RFID] can jeopardize consumer privacy, reduce or eliminate purchasing anonymity, and threaten civil liberties." In general, the advocates argue that RFID technology creates serious privacy concerns because of the potential for "profiling." Because they are so small and unobtrusive, RFID tags can be incorporated into common objects and clothing, so that people will not know when they are being scanned. Furthermore, widespread RFID deployment would permit the creation of "massive databases" of tag data, much of which could be linked with personal identifying data. If personal information and RFID data were linked, then "individuals could be profiled and tracked without their knowledge or consent." "Even without such linkage, the RFID tags can themselves permit the tracking of individuals, since each one contains a unique identifier. That unique identifier permits an individual to be tracked from place to place even though those doing the tracking may not initially know the name of the person they are tracking." As an alternative to this bill, the coalition suggests a three-part "framework" of recommendations to address the concerns created by RFID systems: First, RFID "must undergo a formal technology assessment, and RFID tags should not be affixed to individual consumer products until such assessment takes place". SB 1834 Page 6 Second, "RFID implementation must be guided by the principles of Fair Information Practice [FIP]." The FIP is a set of privacy guidelines adopted by the Organisation for Economic Co-operation and Development, an international group of over 30 member countries, that "plays a prominent role in fostering good governance in the public service and in corporate activity." Third, "certain uses of RFID should be flatly prohibited," which would include forcing consumers to accept tagged products, prohibiting consumers from detecting and disabling tags, tracking individuals without consent, and incorporating tags into currency. More specifically, the advocates recommend the following modifications to this bill: RFIDs should not be permitted in driver's licenses or ID cards, public sector entities should be banned from gathering data from the private sector, the prohibitions on library RFID use should be deleted to ensure that they do not interfere with tougher local restrictions, notice of RFID location on products should be required, consumers should be given a right to read and disable RFIDs, and other clarifications as well. REGISTERED SUPPORT / OPPOSITION : Support None on file. Opposition American Civil Liberties Union American Electronics Association California Chamber of Commerce California Grocers Association California Retailers Association Consumer Specialty Products Association Electronic Frontier Foundation General Motors Corporation Grocery Manufacturers of America Privacy Rights Clearinghouse Analysis Prepared by : Hank Dempsey / B. & P. / (916) 319-3301 SB 1834 Page 7