RFID and Consumer Privacy: Let the Buyer Beware! (2007)

ABSTRACT Caveat Emptor, or Let the Buyer Beware, has long been a legal adage warning consumers of the ramifications of purchasing defective products. Until the advent of product liability laws, the consumer suffered without legal recourse when injured by dangerous products. Now, this adage can be used to warn consumers of another potential danger associated with the purchase of goods, the loss of their privacy. The utilization of Radio Frequency Identification (RFID) technology in the marketplace has intensified the debate and concern over consumer privacy. The ability to collect and use data through the use of RFID to market to and monitor consumers raises new questions about the consumer's ability to know about, correct and to restrict the collection and use of his or her personal data. While RFID is still an emerging technology, its many uses clearly demonstrate the potential for serious issues for consumer privacy. Currently no federal or state legislation addresses the consumer privacy issue in regard to RFID. Will existing tort privacy law be able to address the privacy issues raised by the collection, use and dissemination of consumer information? This paper considers the nature of the RFID privacy debate and reviews tort privacy law in light of its potential application to consumer suits involving privacy the collection and use of personal data. INTRODUCTION Caveat Emptor, or Let the Buyer Beware, has long been a legal adage warning consumers of the ramifications of purchasing defective products. Until the advent of product liability laws, the consumer suffered without legal recourse when injured by dangerous products. Now, this adage can be used to warn consumers of another potential danger associated with the purchase of goods, the loss of their privacy. Radio Frequency Identification (RFID) is the powerful new tracking technology has intensified the debate regarding consumer privacy. With RFID anything can be tracked, from consumer goods to currency to people. Such a powerful tracking device creates the potential for abuse and that should be a serious concern to consumers. While the privacy debate is not a new one, the fear of the continued loss of privacy reaches new levels with RFID because the tags do not require line of sight to be read and, moreover, data collected and stored in databases with each reading can be combined to identify the who, what and where of consumer purchasing. This form of data collection and data mining create a reality where consumer purchases can be linked to consumer information, creating the commercial availability of personal and private information. The applications for RFID, while still emerging, are already vast. In California, an elementary school proposed the use of RFID to track students who would wear RFID devices, called tags, in badges. The students' badges were read as they entered classrooms. In Texas, students were given badges that racked the students entering or exiting from school buses and that information was monitored by police (School RFID plan gets an F). The European Central Bank is developing a plan to embed RFID in currency making it difficult to counterfeit but also allowing law enforcement to track cash transactions (Yoshida, 2001). The Marin County District Attorneys Office uses RFID to track office files. Handheld readers are used to help locate missing files. (Swedberg, 2005a). The US State Department has developed a plan for the use of RFID in passports. Department regulations have been developed to address the privacy issues raided by the ability for passports to be read without the knowledge or consent of the owner. US passports will include a radio shield in the cover to allow reading of the tags only when the passport is open (Schneier, 2005). Virginia is considering embedding RFID tags into drivers' licenses. As one critic noted FBI agents, for example, could sweep up the identities of everyone at a political meeting, protest march, gun show, or Islamic prayer service (ACLU urges Virginia legislators). …