RFID and Other Embedded Technologies: Who Owns the Data?

Abstract

The article reviews the legal protections available for data tracked and stored on radio frequency identification (RFID) tags, generated when such tags are attached to goods which travel in the stream of commerce. In particular, the article explores the extent to which a person can own or control such data, and who that person is. While the universal product code, in the form of the printed bar code, allows merchants to track products by general product category, RFID allows merchants to identify and track individual items nearly anywhere in the world, because each item tagged has an individual electronic product code (EPC). When such embedded RFID tags are designed to include technology that can track and store data retrieved by sensors attached to the tag, this allows for each tag to create a detailed database of the movement and use of goods, stored locally on each tag. While such resulting databases may contain valuable information, the current legal protection for such data in the U.S. is limited. The article discusses direct ownership of the data contained on the tag under such theories as copyright and trade secret law, or indirectly through ownership of the hardware. Also discussed are legal controls limiting access to the data, even where a merchant does not own the data or the hardware.

Keywords: RFID, UPC, EPCGLOBAL, DATA, DATABASE, tracking, EPC,

JEL Classification: K11, K20, K39, O34, O33, L15