BILL ANALYSIS                                                                                                                                                                                                    



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          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  








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               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  








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          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  








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          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  








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          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".  








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          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  









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