Bill Text: NY S08196 | 2009-2010 | General Assembly | Introduced

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Bill Title: 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; restricts aggregation and disclosure of personal information; provides for enforcement by the attorney general, injunctions and civil penalties.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2010-06-16 - REFERRED TO RULES [S08196 Detail]

Download: New_York-2009-S08196-Introduced.html

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                           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:
    1    Section 1. Short title.  This act shall be known and may be  cited  as
    2  the "radio frequency identification right to know act".
    3    S  2. The general business law is amended by adding a new article 12-C
    4  to read as follows:
    5                                ARTICLE 12-C
    6                RADIO FREQUENCY IDENTIFICATION RIGHT TO KNOW
    7  SECTION 219. RADIO FREQUENCY IDENTIFICATION RIGHT TO KNOW.
    8    S 219. RADIO FREQUENCY IDENTIFICATION RIGHT TO KNOW.  1.  DEFINITIONS.
    9  AS  USED  IN  THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
   10  MEANINGS:
   11    A. "AFFILIATE" MEANS A PERSON RELATED TO A  RETAIL  MERCANTILE  ESTAB-
   12  LISHMENT  THAT CARRIES ON DIRECT OR RELATED FUNCTIONS OF SUCH ESTABLISH-
   13  MENT.
   14    B. "DEACTIVATE" MEANS TO DISABLE OR OTHERWISE RENDER UNUSABLE.
   15    C. "PACKAGE" MEANS ANY TYPE OF CONTAINER, ARTICLE,  OR  ITEM  THAT  IS
   16  USED TO CONTAIN OR HOLD A RETAIL PRODUCT IN THE FORM IN WHICH THE RETAIL
   17  PRODUCT  IS  SOLD  TO  CONSUMERS.  SUCH  TERM SHALL NOT APPLY TO PETS OR
   18  DOMESTICATED ANIMALS.
   19    D. "PERSONAL INFORMATION" MEANS ANY INFORMATION CONCERNING  A  NATURAL
   20  PERSON  WHICH, BECAUSE OF NAME, NUMBER, SYMBOL, MARK, OR OTHER IDENTIFI-
   21  ER, CAN BE USED TO IDENTIFY THAT NATURAL PERSON.
   22    E. "RADIO FREQUENCY IDENTIFICATION" MEANS  ANY  TECHNOLOGY  THAT  USES
   23  RADIO  WAVES OR OTHER WIRELESS MEANS TO TRANSMIT IDENTIFYING INFORMATION
   24  BETWEEN A TAG, BADGE, OR OTHER DEVICE  AND  A  READER  WITHOUT  PHYSICAL
   25  CONTACT.
   26    F.  "RADIO  FREQUENCY  IDENTIFICATION  TAG"  MEANS  A  DEVICE  THAT IS
   27  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
    1  AGE  THAT  USES  RADIO FREQUENCY IDENTIFICATION TECHNOLOGY TO TRANSMIT A
    2  UNIQUE NUMBER OR IDENTIFIER TO A READER.
    3    G.  "READER"  MEANS  A  DEVICE THAT IS CAPABLE OF USING RADIO WAVES OR
    4  OTHER WIRELESS MEANS TO COMMUNICATE WITH, AND READ THE INFORMATION TRAN-
    5  SMITTED BY, A RADIO FREQUENCY IDENTIFICATION TAG.
    6    2. NOTICES. A. EVERY RETAIL MERCANTILE  ESTABLISHMENT  THAT  SELLS  OR
    7  OFFERS  FOR  SALE  MERCHANDISE CONTAINING RADIO FREQUENCY IDENTIFICATION
    8  TAGS SHALL POST A NOTICE  SO  INFORMING  CONSUMERS.  SUCH  NOTICE  SHALL
    9  DISCLOSE THAT:
   10    (1) THE ESTABLISHMENT OFFERS ITEMS WITH RADIO FREQUENCY IDENTIFICATION
   11  TAGS;
   12    (2) NEW YORK STATE LAW REQUIRES THE ESTABLISHMENT TO REMOVE OR DISABLE
   13  ALL  RADIO  FREQUENCY  IDENTIFICATION TAGS BEFORE TAGGED ITEMS LEAVE THE
   14  ESTABLISHMENT; AND
   15    (3) THE ESTABLISHMENT IS REQUIRED TO PROVIDE  CONSUMERS,  ON  REQUEST,
   16  WITH  PERSONAL INFORMATION GATHERED WITHIN THE ESTABLISHMENT THROUGH THE
   17  RADIO FREQUENCY IDENTIFICATION TAGS USED IN THE ESTABLISHMENT.
   18    SUCH NOTICE SHALL BE POSTED ON A SIGN AFFIXED TO EACH CASH REGISTER OR
   19  POINT OF SALE AT WHICH SUCH GOODS ARE OFFERED FOR SALE OR ON A  SIGN  SO
   20  SITUATED AS TO BE CLEARLY VISIBLE TO THE BUYER FROM EACH CASH REGISTER.
   21    B.    NO  RETAIL MERCANTILE ESTABLISHMENT SHALL SELL OR OFFER FOR SALE
   22  ANY ITEM OR PACKAGE THAT CONTAINS OR BEARS A RADIO FREQUENCY IDENTIFICA-
   23  TION TAG UNLESS SUCH ITEM OR PACKAGE IS LABELED WITH  A  NOTICE  STATING
   24  THAT  SUCH ITEM OR PACKAGE CONTAINS OR BEARS A RADIO FREQUENCY IDENTIFI-
   25  CATION TAG, AND THAT THE RADIO FREQUENCY IDENTIFICATION TAG CAN TRANSMIT
   26  UNIQUE IDENTIFICATION INFORMATION TO AN INDEPENDENT READER  BOTH  BEFORE
   27  AND AFTER PURCHASE. SUCH LABEL SHALL BE POSTED ON THE ITEM OR PACKAGE IN
   28  A  CONSPICUOUS  TYPE  SIZE AND LOCATION AND IN PRINT THAT CONTRASTS WITH
   29  THE BACKGROUND AGAINST WHICH IT APPEARS.
   30    C. UPON WRITTEN REQUEST OF A CONSUMER, A RETAIL MERCANTILE  ESTABLISH-
   31  MENT  THAT  HAS  GATHERED  PERSONAL  INFORMATION THROUGH RADIO FREQUENCY
   32  IDENTIFICATION TAGS SHALL RELEASE TO THE REQUESTER  ALL  OF  THE  STORED
   33  PERSONAL  INFORMATION  PERTAINING TO THE REQUESTER. EVERY RETAIL MERCAN-
   34  TILE ESTABLISHMENT SHALL MAKE AVAILABLE TO CONSUMERS  A  FORM  FOR  SUCH
   35  REQUESTS.
   36    3. REMOVAL. EVERY RETAIL MERCANTILE ESTABLISHMENT THAT OFFERS ITEMS OR
   37  PACKAGES  THAT CONTAIN OR BEAR RADIO FREQUENCY IDENTIFICATION TAGS SHALL
   38  REMOVE OR DEACTIVATE ALL TAGS AT THE POINT OF SALE. IN ADDITION:
   39    A. ALL COSTS OF WHATSOEVER NAME OR NATURE FOR THE REMOVAL  OR  DEACTI-
   40  VATION  OF  A  RADIO  FREQUENCY IDENTIFICATION TAG SHALL BE BORNE BY THE
   41  RETAIL MERCANTILE ESTABLISHMENT;
   42    B. A RETAIL MERCANTILE ESTABLISHMENT SHALL NOT COERCE  CONSUMERS  INTO
   43  KEEPING  RADIO  FREQUENCY  IDENTIFICATION  TAGS  ON ITEMS OR PACKAGES BY
   44  REQUIRING ITEMS OR PACKAGES TO  BE  EXCHANGED,  RETURNED,  REPAIRED,  OR
   45  SERVICED TO CONTAIN OR BEAR ACTIVE TAGS; AND
   46    C.  A RADIO FREQUENCY IDENTIFICATION TAG, ONCE REMOVED OR DEACTIVATED,
   47  SHALL NOT BE REACTIVATED WITHOUT EXPRESS CONSENT OF THE CONSUMER ASSOCI-
   48  ATED WITH THE TAGGED ITEM.
   49    4. AGGREGATION OF PERSONAL INFORMATION AND RADIO FREQUENCY IDENTIFICA-
   50  TION TAG  INFORMATION.  A.  NO  RETAIL  MERCANTILE  ESTABLISHMENT  SHALL
   51  COMBINE OR LINK A CONSUMER'S PERSONAL INFORMATION WITH INFORMATION GATH-
   52  ERED BY, OR CONTAINED WITHIN, A RADIO FREQUENCY IDENTIFICATION TAG.
   53    B.  NO  RETAIL  MERCANTILE ESTABLISHMENT SHALL, DIRECTLY OR THROUGH AN
   54  AFFILIATE, DISCLOSE TO A NONAFFILIATED THIRD PARTY A CONSUMER'S PERSONAL
   55  INFORMATION ASSOCIATED WITH INFORMATION GATHERED BY, OR CONTAINED  WITH-
   56  IN, A RADIO FREQUENCY IDENTIFICATION TAG.
       S. 8196                             3
    1    C.  NO  RETAIL  MERCANTILE ESTABLISHMENT SHALL, DIRECTLY OR THROUGH AN
    2  AFFILIATE OR NONAFFILIATED THIRD PARTY, USE INFORMATION GATHERED BY,  OR
    3  CONTAINED  WITHIN,  A  RADIO  FREQUENCY IDENTIFICATION TAG TO IDENTIFY A
    4  CONSUMER.
    5    5.  ENFORCEMENT.  WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION,
    6  AN APPLICATION MAY BE MADE BY THE ATTORNEY GENERAL IN THE  NAME  OF  THE
    7  PEOPLE  OF THE STATE OF NEW YORK, TO A COURT OR JUSTICE HAVING JURISDIC-
    8  TION, BY A SPECIAL PROCEEDING, TO ISSUE AN INJUNCTION, AND, UPON  NOTICE
    9  TO  THE DEFENDANT OF NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE
   10  CONTINUANCE OF SUCH VIOLATION; AND, IF IT SHALL APPEAR TO THE  SATISFAC-
   11  TION  OF  THE COURT OR JUSTICE THAT THE DEFENDANT HAS, IN FACT, VIOLATED
   12  THIS SECTION, AN INJUNCTION MAY BE  ISSUED  BY  THE  COURT  OR  JUSTICE,
   13  ENJOINING  AND  RESTRAINING  ANY  FURTHER  VIOLATIONS, WITHOUT REQUIRING
   14  PROOF THAT ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.  IN
   15  ANY  SUCH  PROCEEDING,  THE  COURT  MAY  MAKE ALLOWANCES TO THE ATTORNEY
   16  GENERAL, AS PROVIDED IN PARAGRAPH SIX  OF  SUBDIVISION  (A)  OF  SECTION
   17  EIGHTY-THREE  HUNDRED  THREE  OF  THE  CIVIL PRACTICE LAW AND RULES, AND
   18  DIRECT RESTITUTION. WHENEVER THE COURT SHALL DETERMINE THAT A  VIOLATION
   19  OF  THIS  SECTION  HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF
   20  NOT MORE THAN FIVE HUNDRED DOLLARS FOR EACH  VIOLATION.  EACH  SALE,  OR
   21  OFFERING  FOR  SALE,  OF AN ITEM OR PACKAGE IN VIOLATION OF THIS SECTION
   22  SHALL CONSTITUTE A SEPARATE  VIOLATION.  IN  CONNECTION  WITH  ANY  SUCH
   23  PROPOSED  APPLICATION,  THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF
   24  AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
   25  ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
   26    S  3.  If  any  item,  clause,  sentence,  subparagraph,  subdivision,
   27  section,  or  other  part of this act, or the application thereof to any
   28  person or circumstances shall be held to be invalid, such holding  shall
   29  not  affect,  impair  or  invalidate  the  remainder of this act, or the
   30  application of such section or part of a section held  invalid,  to  any
   31  other person or circumstances, but shall be confined in its operation to
   32  the item, clause, sentence, subparagraph, subdivision, section, or other
   33  part of this act directly involved in such holding, or to the person and
   34  circumstances therein involved.
   35    S 4. This act shall take effect January 1, 2011.