DATA
PROTECTION
Tracking
products or people?
 The
simple bar code on products is gradually being replaced by smart tags that
use wireless technology, such as WI-FI, Radio Frequency ID, Bluetooth, Global
Positioning System Technology and General Packet Radio Service. Product
coding, or tagging in the past, was generally restricted to bar coding which
was a relatively passive form of tagging since it required the use of bar
code readers to interpret data and the data itself said little more than
the identity of the product.
More active product tagging, such as RFID has, until recently, been expensive
to implement (and indeed is still relatively expensive) but the more sophisticated
product coding technology now allows for, not only identification of the
product itself but specific confirmation of the precise batch that a product
came from and using wireless technology, the ability to track the movement
of that product.
Global companies such as Gillette, Phillips, Procter & Gamble, Wal-Mart
and others see huge savings to be made from the use of RFID and there are
numerous pilot projects underway for which are indicating savings to be
made in supply chains as well as the ability to add value to both product
owner, product reseller and customer.
Whilst RFID technology and the like will make savings in the supply chain,
they may also produce a range of smart solutions, such as refrigerators
or waste bins that automatically create shopping lists, products tagged
for store returns, reduction of the risk of fraud and theft and smart travel
tickets that indicate your location in airports, stations and so on. However,
privacy groups and consumer associations have expressed concern that the
same technology may have invasive features since, if the technology can
track the product, then the same technology can track the product purchaser.
Although currently a number of the new tagging technologies can only be
read over short distances there are suggestions that if there are connected
sites with suitable readers, it is feasible that the purchaser of an RFID
tagged product could be tracked from the points that the product is put
into a shopping trolley to the point of payment and indeed beyond. Such
tracking enables retailers to build up sophisticated profiles on purchasers
but at the same time may, potentially, breach human rights and in particular
the Data Protection Act 1998.
The Act defines personal data as “data which relates to a living individual
who can be identified either from that data or from that data and other
information which is in the possession or is likely to come into the possession
of the data controller.” So data from an RFID tagged product, when
read in conjunction with the purchaser's loyalty card, swiped at the point
of payment, produces a record of product purchase to purchaser and in conjunction
with other products purchased at the same time builds a profile. If those
tagged products are readable outside a store it is possible that yet more
data can be gathered to track and profile the purchasing style of that individual
within a locality.
However, it is not the tagging in itself that is potentially a breach of
data protection laws but the subsequent collection processing of data derived
from the tagged product that causes the problem.
The data protection legislation in the UK requires that individuals are
notified of data processing activities and are given sufficient information
about the way which such data will be stored and used to be able to give
informed consent.
A number of projects under way have been marketing led and often have not
perceived compliance for data protection as a fundamental issue.
Whilst there are already a number of technology standard groups looking
at codifying tagging technology on a global basis, little investigation
has been done into the issues of compliance with data protection laws, although
the International Chamber of Commerce has recently established a product
coding and tagging group which will address legal and regulatory issues
in which Robert Bond is a member.
Robert Bond is a partner based in the London office of
Faegre and Benson.
He is a Companion of the British Computer Society and a Fellow of the Society
of Advanced Legal Study. |
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