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Washington RFID Law Could Pave Way For More

Some RFID industry observers think RFID regulations recently enacted in the state of Washington will lead to a bevy of similar laws around the country. At least 28 states are believed to have pending RFID legislation, and there are federal-level efforts underway around the world.
Apr 10, 2008This article was originally published by RFID Update.

April 10, 2008—RFID legislation recently passed in the state of Washington (see Washington RFID Bill Expected to Become Law Today) is being viewed as precedent setting, for better and for worse. Some view it as good because the law is not vague or especially far reaching. But others view it as a potentially bad precedent because RFID-specific laws might not be necessary at all, and now the Washington law is likely to encourage efforts in other states.

"Policy makers at the state and federal levels pay attention to what is happening in other venues. Since Washington was successful in getting one of the first RFID regulations passed, other states will take notice," Doug Farry of McKenna Long & Aldridge, a San Diego law firm that specializes in RFID and has experience in public policy issues, told RFID Update. The firm did not lobby Washington regarding the new state laws, but several of his clients did on their own, according to Farry. "The precedent in Washington will help get passage on others."

There are at least 28 other states with pending RFID legislation, according to Farry. His firm maintains the RFID Law Blog, which tracks RFID legislative activity and other industry news.

Most pending legislation focuses on one of two areas: safeguarding personal information, such as the Washington skimming law, or providing notification that RFID tags and readers are in use, which is motivated by the growing use of RFID in retail. The European Union is also currently preparing notification-oriented RFID regulations (see EU Drafting New RFID-Oriented Privacy Protections).

In its blog, McKenna Long & Aldridge noted the original bill to regulate RFID in Washington had many more restrictions, which were stripped out to win passage. From that perspective, the final law was something of a victory for the RFID industry. It is a very tightly defined regulation that restricts behavior (skimming), not RFID technology itself.

However, Farry expects the bill's sponsor, Rep. Jeff Morris, to try again by reintroducing the stripped restrictions as separate new bills, much like California State Senator Joe Simitian did after his proposed RFID legislation was blocked (see California RFID Restrictions Get Governor's Veto). Simitian now has five separate bills pending in the state legislature.

Many RFID professionals feel the industry does not need more regulation. AIM Global advances a widely supported argument that many activities targeted by RFID legislation are already covered by existing laws, so RFID-specific rules and restrictions are not necessary. The Washington skimming law is an example. Washington citizens are already protected by multiple identity theft and privacy laws, AIM Global President Dan Mullen told RFID Update. AIM provided information to the state during the legislative process and follows regulatory developments around the world.

"You have to wonder if many of these laws are really necessary, or if the activity is already covered by existing regulations," Mullen said.

Existing regulations haven't historically deterred new technology legislation, according to Farry. "Legislation isn't always about solving a problem. It's often about a politician associating him or herself with an emerging technology so they can show their constituents how tech-savvy and forward-thinking they are," he said. "There is a consistent and predictable legislative curve for new technology. What is happening with RFID happened with the Internet, with cell phones, and with radio."

That will be little comfort to RFID solution providers, who face the prospect of having to deal with 50 laws for 50 states, plus other requirements around the world.

"The activity in Washington could certainly influence other states," Mullen said. "That's all the more reason the industry should make sure legislators are well informed about RFID -- including its benefits, what it can do, and what it can't do -- so they don't legislate anything that will negatively impact how people can use the technology to benefit."

"In the mid '90s, politicians attached themselves to the Internet and proposed a lot of regulations. RFID is now at that stage," said Farry. "Eventually, those who are interested in seeing the technology flourish start working with lawmakers to encourage responsible use of the technology."

There are several industry public policy efforts. AIM developed a logo intended to be included on packaging and on signs to indicate that items include RFID tags, or that RFID readers are present. The graphic was recently submitted to the ISO for consideration as an international standard, which could come later this year, according to Mullen. He said there has been more interest and adoption for the logo from the industrial segment than from retail. EPCglobal requires its subscribers to notify consumers about RFID systems in use and has issued Consumer Product Guidelines. The Smart Card Alliance and American Electronics Association are also known to be active in the legislative process.
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