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A00222 Text:

                STATE OF NEW YORK
                               2007-2008 Regular Sessions
                   IN ASSEMBLY
                                     January 3, 2007
        Introduced by M. of A. PHEFFER, DESTITO -- read once and referred to the
          Committee on Consumer Affairs and Protection
        AN  ACT to amend the general business law, in relation to regulating the
          use of radio frequency identification tags by retail mercantile estab-

          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    § 2. The general business law is amended by adding a new article  12-C
     4  to read as follows:
     5                                ARTICLE 12-C
     7  Section 219. Radio frequency identification right to know.
     8    §  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

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

        A. 222                              2
     1  between  a  tag,  badge,  or  other device and a reader without physical
     2  contact.
     3    f.  "Radio  frequency  identification  tag"  means  a  device  that is
     4  attached to, embedded in, or made part of a retail product or its  pack-
     5  age  that  uses  radio frequency identification technology to transmit a
     6  unique number or identifier to a reader.
     7    g. "Reader" means a device that is capable of  using  radio  waves  or
     8  other wireless means to communicate with, and read the information tran-

     9  smitted by, a radio frequency identification tag.
    10    2.  Notices.  a.  Every  retail mercantile establishment that sells or
    11  offers for sale merchandise containing  radio  frequency  identification
    12  tags  shall  post  a  notice  so  informing consumers. Such notice shall
    13  disclose that:
    14    (1) the establishment offers items with radio frequency identification
    15  tags;
    16    (2) New York state law requires the establishment to remove or disable
    17  all radio frequency identification tags before tagged  items  leave  the
    18  establishment; and
    19    (3)  the  establishment  is required to provide consumers, on request,
    20  with personal information gathered within the establishment through  the

    21  radio frequency identification tags used in the establishment.
    22    Such notice shall be posted on a sign affixed to each cash register or
    23  point  of  sale at which such goods are offered for sale or on a sign so
    24  situated as to be clearly visible to the buyer from each cash register.
    25    b.  No retail mercantile establishment shall sell or  offer  for  sale
    26  any item or package that contains or bears a radio frequency identifica-
    27  tion  tag  unless  such item or package is labeled with a notice stating
    28  that such item or package contains or bears a radio frequency  identifi-
    29  cation tag, and that the radio frequency identification tag can transmit
    30  unique  identification  information to an independent reader both before

    31  and after purchase. Such label shall be posted on the item or package in
    32  a conspicuous type size and location and in print  that  contrasts  with
    33  the background against which it appears.
    34    c.  Upon written request of a consumer, a retail mercantile establish-
    35  ment that has gathered  personal  information  through  radio  frequency
    36  identification  tags  shall  release  to the requester all of the stored
    37  personal information pertaining to the requester. Every  retail  mercan-
    38  tile  establishment  shall  make  available to consumers a form for such
    39  requests.
    40    3. Removal. Every retail mercantile establishment that offers items or
    41  packages that contain or bear radio frequency identification tags  shall

    42  remove or deactivate all tags at the point of sale. In addition:
    43    a.  all  costs of whatsoever name or nature for the removal or deacti-
    44  vation of a radio frequency identification tag shall  be  borne  by  the
    45  retail mercantile establishment;
    46    b.  a  retail mercantile establishment shall not coerce consumers into
    47  keeping radio frequency identification tags  on  items  or  packages  by
    48  requiring  items  or  packages  to  be exchanged, returned, repaired, or
    49  serviced to contain or bear active tags; and
    50    c. a radio frequency identification tag, once removed or  deactivated,
    51  shall not be reactivated without express consent of the consumer associ-
    52  ated with the tagged item.

    53    4. Aggregation of personal information and radio frequency identifica-
    54  tion  tag  information.  a.  No  retail  mercantile  establishment shall
    55  combine or link a consumer's personal information with information gath-
    56  ered by, or contained within, a radio frequency identification tag.

        A. 222                              3
     1    b. No retail mercantile establishment shall, directly  or  through  an
     2  affiliate, disclose to a nonaffiliated third party a consumer's personal
     3  information  associated with information gathered by, or contained with-
     4  in, a radio frequency identification tag.
     5    c.  No  retail  mercantile establishment shall, directly or through an
     6  affiliate or nonaffiliated third party, use information gathered by,  or

     7  contained  within,  a  radio  frequency identification tag to identify a
     8  consumer.
     9    5. Enforcement. Whenever there shall be a violation of  this  section,
    10  an  application  may  be made by the attorney general in the name of the
    11  people of the state of New York, to a court or justice having  jurisdic-
    12  tion,  by a special proceeding, to issue an injunction, and, upon notice
    13  to the defendant of not less than five days, to enjoin and restrain  the
    14  continuance  of such violation; and, if it shall appear to the satisfac-
    15  tion of the court or justice that the defendant has, in  fact,  violated
    16  this  section,  an  injunction  may  be  issued by the court or justice,
    17  enjoining and restraining  any  further  violations,  without  requiring

    18  proof  that any person has, in fact, been injured or damaged thereby. In
    19  any such proceeding, the court  may  make  allowances  to  the  attorney
    20  general,  as  provided  in  paragraph  six of subdivision (a) of section
    21  eighty-three hundred three of the civil  practice  law  and  rules,  and
    22  direct  restitution. Whenever the court shall determine that a violation
    23  of this section has occurred, the court may impose a  civil  penalty  of
    24  not  more  than  five  hundred dollars for each violation. Each sale, or
    25  offering for sale, of an item or package in violation  of  this  section
    26  shall  constitute  a  separate  violation.  In  connection with any such
    27  proposed application, the attorney general is authorized to  take  proof

    28  and make a determination of the relevant facts and to issue subpoenas in
    29  accordance with the civil practice law and rules.
    30    §  3.  If  any  item,  clause,  sentence,  subparagraph,  subdivision,
    31  section, or other part of this act, or the application  thereof  to  any
    32  person  or circumstances shall be held to be invalid, such holding shall
    33  not affect, impair or invalidate the  remainder  of  this  act,  or  the
    34  application  of  such  section or part of a section held invalid, to any
    35  other person or circumstances, but shall be confined in its operation to
    36  the item, clause, sentence, subparagraph, subdivision, section, or other
    37  part of this act directly involved in such holding, or to the person and
    38  circumstances therein involved.
    39    § 4. This act shall take effect January 1, 2009.
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