NY State Senate Bill 2009-S8196

Senate Bill S8196

2009-2010 Legislative Session

Enacts the "radio frequency identification right to know act"; requires retail mercantile establishments to disclose the use of RFID devices and other information

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 16, 2010	referred to rules

2009-S8196 (ACTIVE) - Details

See Assembly Version of this Bill:: A276
Current Committee:: Senate Rules
Law Section:: General Business Law
Laws Affected:: Add Art 12-C §219, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S1168, A1033, A8428
2013-2014: S3099

2009-S8196 (ACTIVE) - Summary

Enacts the "radio frequency identification right to know act", requiring retail mercantile establishments to disclose the use of RFID devices and gathered personal information; requires the labeling of retail products or packages containing a radio frequency identification tag; sets standards for labels and for posting notices; requires point of sale removal of RFID tags

2009-S8196 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S8196

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 estab-
lishments

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, manufac-
tures, 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 identifica-
tion 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, includ-
ing 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:    A.274  - 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, 2011

2009-S8196 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8196

                            I N  S E N A T E

                              June 16, 2010
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

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
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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD03050-01-9

S. 8196                             2

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.
  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.

S. 8196                             3

  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, 2011.

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