S1168-2011 Actions

• Jan 4, 2012: REFERRED TO CONSUMER PROTECTION
• Jan 5, 2011: REFERRED TO CONSUMER PROTECTION

S1168-2011 Memo

BILL NUMBER:S1168

TITLE OF BILL:

An act
to amend the general business law, in relation to regulating the use of
radio frequency identification tags by retail mercantile
establishments

PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to ensure consumer privacy by requiring
labels on all products containing a radio frequency identification
tag with a notice regarding the existence of such tag.

SUMMARY OF SPECIFIC PROVISIONS:

This bill would require any person or entity that produces,
manufactures, packages, distributes or sells a retail product and
causes a radio frequency identification tag to be attached to,
embedded in or made part of the retail product or its package to
label such product or its packaging with a notice regarding the
existence of the radio frequency identification tag. The bill also
prohibits retailers from selling any product they know to have a RFID
tag without a proper label as required by this section. Finally, the
bill provides for enforcement by the Attorney General and a civil
penalty of between one hundred and one thousand dollars per violation.

JUSTIFICATION:

The right to privacy is a personal and fundamental right protected by
the United States Constitution. Systems used to transmit the identity
of an object or person using radio waves or other wireless means,
commonly referred to as radio frequency identification technology
(RFID), are increasingly being employed. As the price of radio
frequency identification technology decreases, the employment of this
technology is expected to increase rapidly. Several major retailers,
including Wal-Mart, Target and Best Buy, are moving rapidly to
require RFID tags on the products they sell. This new technology has
several privacy implications, including the potential for the
tracking of movements of a person who possesses or handles objects
containing radio frequency identification tags and the profiling of
citizens without their consent.

Consumers have a right to know if the products they purchase contain
technologies which could jeopardize their privacy. Requiring the
proper labeling of products containing RFID tags would allow
consumers to take any precautions they believe necessary to protect
their privacy.

PRIOR LEGISLATIVE HISTORY:

2009-10:  S.8196/A.274 - Referred to Rules/Referred to Consumer Affairs
& Protection
2007-08:  A.261 - Referred to Consumer Affairs and Protection
2005-06:  A.9505 - Referred to Consumer Affairs and Protection


FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

January 1, 2013

S1168-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         1168
 2011-2012 Regular Sessions
 I N  SENATE
 January 5, 2011
 
 Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
 printed to be committed to the Committee on Consumer Protection
 

AN ACT to amend the general business law, in relation to regulating  the
 use of radio frequency identification tags by retail mercantile estab
 lishments
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. Short title.  This act shall be known and may be  cited  as
 the "radio frequency identification right to know act".
 

S  2. The general business law is amended by adding a new article 12-C
 to read as follows:

 ARTICLE 12-C
 RADIO FREQUENCY IDENTIFICATION RIGHT TO KNOW
 SECTION 219. RADIO FREQUENCY IDENTIFICATION RIGHT TO KNOW.
 

S 219. RADIO FREQUENCY IDENTIFICATION RIGHT TO KNOW.  1.  DEFINITIONS.
 AS  USED  IN  THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
 MEANINGS:

 A. "AFFILIATE" MEANS A PERSON RELATED TO A  RETAIL  MERCANTILE  ESTAB
 LISHMENT  THAT CARRIES ON DIRECT OR RELATED FUNCTIONS OF SUCH ESTABLISH
 MENT.
 B. "DEACTIVATE" MEANS TO DISABLE OR OTHERWISE RENDER UNUSABLE.
 C. "PACKAGE" MEANS ANY TYPE OF CONTAINER, ARTICLE,  OR  ITEM  THAT  IS
 USED TO CONTAIN OR HOLD A RETAIL PRODUCT IN THE FORM IN WHICH THE RETAIL
 PRODUCT  IS  SOLD  TO  CONSUMERS.  SUCH  TERM SHALL NOT APPLY TO PETS OR
 DOMESTICATED ANIMALS.
 D. "PERSONAL INFORMATION" MEANS ANY INFORMATION CONCERNING  A  NATURAL
 PERSON  WHICH, BECAUSE OF NAME, NUMBER, SYMBOL, MARK, OR OTHER IDENTIFI
 ER, CAN BE USED TO IDENTIFY THAT NATURAL PERSON.
 E. "RADIO FREQUENCY IDENTIFICATION" MEANS  ANY  TECHNOLOGY  THAT  USES
 RADIO  WAVES OR OTHER WIRELESS MEANS TO TRANSMIT IDENTIFYING INFORMATION
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD00868-01-1
 
       S. 1168                             2
 BETWEEN A TAG, BADGE, OR OTHER DEVICE  AND  A  READER  WITHOUT  PHYSICAL
 CONTACT.
 F.  "RADIO  FREQUENCY  IDENTIFICATION  TAG"  MEANS  A  DEVICE  THAT IS
 ATTACHED TO, EMBEDDED IN, OR MADE PART OF A RETAIL PRODUCT OR ITS  PACK
 AGE  THAT  USES  RADIO FREQUENCY IDENTIFICATION TECHNOLOGY TO TRANSMIT A
 UNIQUE NUMBER OR IDENTIFIER TO A READER.
 G. "READER" MEANS A DEVICE THAT IS CAPABLE OF  USING  RADIO  WAVES  OR
 OTHER WIRELESS MEANS TO COMMUNICATE WITH, AND READ THE INFORMATION TRAN
 SMITTED BY, A RADIO FREQUENCY IDENTIFICATION TAG.
 2.  NOTICES.  A.  EVERY  RETAIL MERCANTILE ESTABLISHMENT THAT SELLS OR
 OFFERS FOR SALE MERCHANDISE CONTAINING  RADIO  FREQUENCY  IDENTIFICATION
 TAGS  SHALL  POST  A  NOTICE  SO  INFORMING CONSUMERS. SUCH NOTICE SHALL
 DISCLOSE THAT:

 (1) THE ESTABLISHMENT OFFERS ITEMS WITH RADIO FREQUENCY IDENTIFICATION
 TAGS;
 (2) NEW YORK STATE LAW REQUIRES THE ESTABLISHMENT TO REMOVE OR DISABLE
 ALL RADIO FREQUENCY IDENTIFICATION TAGS BEFORE TAGGED  ITEMS  LEAVE  THE
 ESTABLISHMENT; AND
 (3)  THE  ESTABLISHMENT  IS REQUIRED TO PROVIDE CONSUMERS, ON REQUEST,
 WITH PERSONAL INFORMATION GATHERED WITHIN THE ESTABLISHMENT THROUGH  THE
 RADIO FREQUENCY IDENTIFICATION TAGS USED IN THE ESTABLISHMENT.
 SUCH NOTICE SHALL BE POSTED ON A SIGN AFFIXED TO EACH CASH REGISTER OR
 POINT  OF  SALE AT WHICH SUCH GOODS ARE OFFERED FOR SALE OR ON A SIGN SO
 SITUATED AS TO BE CLEARLY VISIBLE TO THE BUYER FROM EACH CASH REGISTER.
 B.  NO RETAIL MERCANTILE ESTABLISHMENT SHALL SELL OR  OFFER  FOR  SALE
 ANY ITEM OR PACKAGE THAT CONTAINS OR BEARS A RADIO FREQUENCY IDENTIFICA
 TION  TAG  UNLESS  SUCH ITEM OR PACKAGE IS LABELED WITH A NOTICE STATING
 THAT SUCH ITEM OR PACKAGE CONTAINS OR BEARS A RADIO FREQUENCY  IDENTIFI
 CATION TAG, AND THAT THE RADIO FREQUENCY IDENTIFICATION TAG CAN TRANSMIT
 UNIQUE  IDENTIFICATION  INFORMATION TO AN INDEPENDENT READER BOTH BEFORE
 AND AFTER PURCHASE. SUCH LABEL SHALL BE POSTED ON THE ITEM OR PACKAGE IN
 A CONSPICUOUS TYPE SIZE AND LOCATION AND IN PRINT  THAT  CONTRASTS  WITH
 THE BACKGROUND AGAINST WHICH IT APPEARS.
 C.  UPON WRITTEN REQUEST OF A CONSUMER, A RETAIL MERCANTILE ESTABLISH
 MENT THAT HAS GATHERED  PERSONAL  INFORMATION  THROUGH  RADIO  FREQUENCY
 IDENTIFICATION  TAGS  SHALL  RELEASE  TO THE REQUESTER ALL OF THE STORED
 PERSONAL INFORMATION PERTAINING TO THE REQUESTER. EVERY  RETAIL  MERCAN
 TILE  ESTABLISHMENT  SHALL  MAKE  AVAILABLE TO CONSUMERS A FORM FOR SUCH
 REQUESTS.
 3. REMOVAL. EVERY RETAIL MERCANTILE ESTABLISHMENT THAT OFFERS ITEMS OR
 PACKAGES THAT CONTAIN OR BEAR RADIO FREQUENCY IDENTIFICATION TAGS  SHALL
 REMOVE OR DEACTIVATE ALL TAGS AT THE POINT OF SALE. IN ADDITION:

 A.  ALL  COSTS OF WHATSOEVER NAME OR NATURE FOR THE REMOVAL OR DEACTI
 VATION OF A RADIO FREQUENCY IDENTIFICATION TAG SHALL  BE  BORNE  BY  THE
 RETAIL MERCANTILE ESTABLISHMENT;
 B.  A  RETAIL MERCANTILE ESTABLISHMENT SHALL NOT COERCE CONSUMERS INTO
 KEEPING RADIO FREQUENCY IDENTIFICATION TAGS  ON  ITEMS  OR  PACKAGES  BY
 REQUIRING  ITEMS  OR  PACKAGES  TO  BE EXCHANGED, RETURNED, REPAIRED, OR
 SERVICED TO CONTAIN OR BEAR ACTIVE TAGS; AND
 C. A RADIO FREQUENCY IDENTIFICATION TAG, ONCE REMOVED OR  DEACTIVATED,
 SHALL NOT BE REACTIVATED WITHOUT EXPRESS CONSENT OF THE CONSUMER ASSOCI
 ATED WITH THE TAGGED ITEM.
 4. AGGREGATION OF PERSONAL INFORMATION AND RADIO FREQUENCY IDENTIFICA
 TION  TAG  INFORMATION.  A.  NO  RETAIL  MERCANTILE  ESTABLISHMENT SHALL
 COMBINE OR LINK A CONSUMER'S PERSONAL INFORMATION WITH INFORMATION GATH
 ERED BY, OR CONTAINED WITHIN, A RADIO FREQUENCY IDENTIFICATION TAG.
 
       S. 1168                             3
 B. NO RETAIL MERCANTILE ESTABLISHMENT SHALL, DIRECTLY  OR  THROUGH  AN
 AFFILIATE, DISCLOSE TO A NONAFFILIATED THIRD PARTY A CONSUMER'S PERSONAL
 INFORMATION  ASSOCIATED WITH INFORMATION GATHERED BY, OR CONTAINED WITH
 IN, A RADIO FREQUENCY IDENTIFICATION TAG.
 C.  NO  RETAIL  MERCANTILE ESTABLISHMENT SHALL, DIRECTLY OR THROUGH AN
 AFFILIATE OR NONAFFILIATED THIRD PARTY, USE INFORMATION GATHERED BY,  OR
 CONTAINED  WITHIN,  A  RADIO  FREQUENCY IDENTIFICATION TAG TO IDENTIFY A
 CONSUMER.
 5. ENFORCEMENT. WHENEVER THERE SHALL BE A VIOLATION OF  THIS  SECTION,
 AN  APPLICATION  MAY  BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF THE
 PEOPLE OF THE STATE OF NEW YORK, TO A COURT OR JUSTICE HAVING  JURISDIC
 TION,  BY A SPECIAL PROCEEDING, TO ISSUE AN INJUNCTION, AND, UPON NOTICE
 TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN  THE
 CONTINUANCE  OF SUCH VIOLATION; AND, IF IT SHALL APPEAR TO THE SATISFAC
 TION OF THE COURT OR JUSTICE THAT THE DEFENDANT HAS, IN  FACT,  VIOLATED
 THIS  SECTION,  AN  INJUNCTION  MAY  BE  ISSUED BY THE COURT OR JUSTICE,
 ENJOINING AND RESTRAINING  ANY  FURTHER  VIOLATIONS,  WITHOUT  REQUIRING
 PROOF  THAT ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY. IN
 ANY SUCH PROCEEDING, THE COURT  MAY  MAKE  ALLOWANCES  TO  THE  ATTORNEY
 GENERAL,  AS  PROVIDED  IN  PARAGRAPH  SIX OF SUBDIVISION (A) OF SECTION
 EIGHTY-THREE HUNDRED THREE OF THE CIVIL  PRACTICE  LAW  AND  RULES,  AND
 DIRECT  RESTITUTION. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION
 OF THIS SECTION HAS OCCURRED, THE COURT MAY IMPOSE A  CIVIL  PENALTY  OF
 NOT  MORE  THAN  FIVE  HUNDRED DOLLARS FOR EACH VIOLATION. EACH SALE, OR
 OFFERING FOR SALE, OF AN ITEM OR PACKAGE IN VIOLATION  OF  THIS  SECTION
 SHALL  CONSTITUTE  A  SEPARATE  VIOLATION.  IN  CONNECTION WITH ANY SUCH
 PROPOSED APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO  TAKE  PROOF
 AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
 ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
 

S  3.  If  any  item,  clause,  sentence,  subparagraph,  subdivision,
 section, or other part of this act, or the application  thereof  to  any
 person  or circumstances shall be held to be invalid, such holding shall
 not affect, impair or invalidate the  remainder  of  this  act,  or  the
 application  of  such  section or part of a section held invalid, to any
 other person or circumstances, but shall be confined in its operation to
 the item, clause, sentence, subparagraph, subdivision, section, or other
 part of this act directly involved in such holding, or to the person and
 circumstances therein involved.
 

S 4. This act shall take effect January 1, 2013.

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