• Washington Passes First Radio Frequency ID Law
  • June 14, 2008
  • Law Firm: Reed Smith LLP - Office
  • Washington State is the first to have passed a state law aimed at governing the use of Radio Frequency Identification (RFID) technology, but now that the cat’s out of the bag, other states are likely to follow with legislation of their own, observers say.

    More than half the states are mulling proposals to legislate the use of RFID tags, which have the capability of storing electronic information that can be read remotely by readers. RFID technology has many applications, including inventory control at retail locations, and provision of customer purchasing data. Privacy advocates worry that RFID tags, which may accompany products home from stores, present the potential for invasion of privacy.

    In addition to activity in the United States at the state level, the European Union has announced plans to implement a new policy addressing the use of RFID technology.

    Washington’s bill, which was signed by the governor March 25 and becomes effective June 12, prohibits the unauthorized scanning of information contained on RFID devices, and the use of such information for illegal purposes, such as fraud and identity theft.

    The bill received mixed reviews from those who tracked its progress. On the one hand, the final bill was much more narrowly tailored that the original version. However, proponents of RFID technology maintain that legislation targeting the technology is unnecessary—that current consumer protection laws already prohibit objectionable behavior. The principal downside to passage of the bill is it opens the door for other legislation that targets the technology rather than bad behavior, observers say.

    Alaska and New Hampshire

    Legislators in Alaska are considering a bill similar to the one passed by Washington. S.B. 293 would prohibit unauthorized scanning and reading of RFID tags. The bill also would forbid retailers from requiring the continued activation of RFID tags for consumers to be able to exchange and return items purchased, as well as have goods fixed and serviced.

    In addition, New Hampshire Senate is weighing H.B. 686, which would create penalties for the illegal use of RFID technology and a private right of action for individuals. The law would prohibit the electronic tracking of individuals without a valid court order or consent, and forbids forced implantation of RFID devices in humans.

    EU Proposal

    The European Commission has published draft guidelines on the use of RFID technology, which include the following recommendations:

    • Assessments be conducted on privacy impacts before deploying RFID technology
    • Deactivation of RFID tags containing personal data when goods are purchased
    • Creation of industry implementation guidelines and codes of conduct for the use of RFID technology
    • Posting signs to alert the public where RFID applications are in use
    • Creation of a logo to flag products that contain RFID tags

    The Commission also has recommended that retailers provide consumers with ways to opt-out of the use of RFID systems, and pledge not to penalize customers who choose to deactivate their tags. The guidelines are expected to be finalized this summer.

    Why This Matters:  The RFID legislation exhibits a trend to legislate new technologies rather than behavior. The trend is potentially troubling because laws that target technology can impede innovation. This basic dispute carries over into online applications and mobile technology.