Congressional Record: March 23, 2004 (Senate)
Page S2989-S2990


  Mr. LEAHY. Mr. President, today I outlined some of the privacy 
challenges we will soon face as new micro monitoring technologies begin 
to proliferate in our society. I spoke in particular about 
breakthroughs in Radio Frequency Identification, also known as RFID.
  My remarks were offered at Georgetown University Law Center, during a 
conference on the legal and technological challenges of video 
surveillance. Micro monitoring is a subject that deserves the attention 
of the Senate and of the American people, and I ask unanimous consent 
the text of my address be printed in the Record in the interest of 
advancing this discussion.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

   The Dawn of Micro Monitoring: It's Promise, and its Challenges to 
                          Privacy and Security

       In our post-9/11 world, technology often has been our 
     crucial but silent partner in helping us to ramp up our law 
     enforcement and national security capabilities. We in this 
     city are profoundly aware of the new risks we face. But we 
     also need to do it right. The public does not want false 
     assurances, nor do they want to be unduly alarmed. What the 
     American people want is to actually be safer. And we still 
     have a way to go in accomplishing that.

                  Tension Between Liberty And Security

       In our constitutional system there is always tension 
     between liberty and security and never more so than since 
     September 11th. One of the difficult challenges we face is to 
     strike the right midpoint. Our constitutional checks and 
     balances are intended to help us do that.
       The video technologies you are discussing today offer tools 
     that are better, faster and smarter, on scales of magnitude 
     that are unprecedented. As an advocate of emerging 
     technologies who also has a keen interest in them, I watch 
     these breakthroughs with great interest.
       I have sought to find ways to encourage the commercial 
     sector to create new products and opportunities, and I have 
     promoted use of new technologies by law enforcement agencies, 
     while also protecting consumer privacy and constitutional 
     freedoms. That was the balance I sought to strike in my work 
     on CALEA and in other legislation that blends law 
     enforcement's needs, the needs of our robust technology 
     sector, and the privacy interests of the American people. The 
     hands-off approach to the Internet that I have favored is 
     another example, and right now I am working with others to 
     extend the Internet tax moratorium, to keep the Internet free 
     from discriminatory and multiple state and local taxes.

              On The Cusp Of A Micro-Monitoring Revolution

       The marriage of information-gathering technology with 
     information storing technology, manipulated in increasingly 
     sophisticated databases, is beginning to produce the defining 
     privacy challenge of the information age. Modern databases, 
     networks and the Internet allow us to easily collect, store, 
     distribute and combine video, audio and other digital trails 
     of our daily transactions. We are on the verge of a 
     revolution in micro-monitoring the capability for the highly 
     detailed, largely automatic, widespread surveillance of our 
     daily lives.


       And one of the most dramatic and dazzling new challenges we 
     all will be facing soon is the emergence of a relatively new, 
     surveillance-related technology called radio frequency 
     identification--R-F-I-D for short.
       RFID tags are tiny computer chips that can be attached to 
     physical items in order to provide identification and 
     tracking by radio. Their potential invasiveness is obvious 
     from their size, which already is surprisingly small. And 
     they will only get smaller.
       In their basic function, RFID chips are like barcodes, 
     which by now are ubiquitous in our stores and offices and 
     crime labs and manufacturing plants.

                          Barcodes On Steroids

       But RFID chips are like supercharged barcodes--barcodes on 
     steroids, if you will. They are so small they can be tagged 
     onto almost any object. They do not have to be in open view; 
     RFID receivers just have to be within the vicinity--at a 
     security checkpoint, in a doorway, inside a mailbox, atop a 
     traffic light. And RFID chips can carry a lot more 
     information than barcodes. Some versions are recordable so 
     that they can carry along the object's entire history.
       RFID chips are more powerful than today's video 
     surveillance technology. RFIDs are more reliable, they are 
     100 percent automatic, and they are likely to become more 
     pervasive because they are significantly less expensive, and 
     there are many business advantages to using them. RFIDs seem 
     poised to become the catalyst that will launch the age of 
       I have followed RFID technology for some time and have 
     welcomed its potential for many constructive uses. I have 
     supported the use of RFIDs in a Vermont pilot program for 
     tracking cattle to curtail outbreaks, like mad cow disease, 
     and our Vermont program

[[Page S2990]]

     is now being emulated for a national tracking system. RFID 
     technology may also help thwart prescription drug 
     counterfeiting, a use the FDA encouraged in a recent report. 
     Leading retailers like Wal-Mart and Target--as well as the 
     Department of Defense--are requiring its use by suppliers for 
     inventory control. Fifty million pets around the world have 
     embedded RFID chips. Of course, many of us already have 
     experience with simpler versions of the technology in ``smart 
     tags'' at toll booths and ``speed passes'' at gas stations.
       But this is just the beginning. RFID technology is on the 
     brink of widespread applications in manufacturing, 
     distribution, retail, healthcare, safety, security, law 
     enforcement, intellectual property protection and many other 
     areas, including mundane applications like keeping track of 
     personal possessions. Some visionaries imagine, quote, ``an 
     internet of objects''--a world in which billions of objects 
     will report their location, identity, and history over 
     wireless connections. Those days of long hunts around the 
     house for lost keys and remote controls might be a 
     frustration of the past.
       These all raise exciting possibilities, but they also raise 
     potentially troubling tangents. While it may be a good idea 
     for a retailer to use RFID chips to manage its inventory, we 
     would not want a retailer to put those tags on goods for sale 
     without consumers' knowledge, without knowing how to 
     deactivate them, and without knowing what information will be 
     collected and how it will be used. While we might want the 
     Pentagon to be able to manage its supplies with RFID tags, we 
     would not want an al Qaeda operative to find out about our 
     resources by simply using a hidden RFID scanner in a war 

                             Drawing Lines

       Of course these are just some of the foreseeable 
     possibilities, and a lot depends on enhancements in the 
     technology, reductions in costs, and developments in 
     voluntary standard-setting, systems and infrastructure to 
     manage RFID-collected information. But the RFID train is 
     beginning to leave the station, and now is the right time to 
     begin a national discussion about where, if at all, any lines 
     will be drawn to protect privacy rights.
       The need to draw some lines is already becoming clear. 
     Recent reports revealed clandestine tests at a Wal-Mart store 
     where RFID tags were inserted in packages of Max Factor 
     lipsticks, with RFID scanners hidden on nearby shelves. The 
     radio signals triggered nearby surveillance cameras to allow 
     researchers 750 miles away to watch those consumers in 
     action. A similar test occurred with Gillette razors at 
     another Wal-Mart store.
       These excesses suggest that Congress may need to step in at 
     some point. When privacy intrusions reach the point of 
     behavior that is absurdly out of bounds, we find ourselves 
     having to deal with such issues as the ``Video Voyeurism 
     Prevention Act,'' a bill now before Congress that would ban 
     the use of camera to spy in bathrooms and up women's skirts, 
     a practice that by now has even been given a name, 
     ``upskirting,'' which I'm sure is as new to you as it is to 
     most of us in Congress.
       Other powerful new technologies are on the horizon, like 
     sensor technology and nanotechnology. All the more reason to 
     think about these issues broadly and to establish guiding 
     principles serving the twin goals of fostering useful 
     technologies while keeping them from overtaking our civil 
       With RFID technology as with many other surveillance 
     technologies, we need to consider how it will be used, and 
     will it be effective. What information will it gather, and 
     how long will that data be kept? Who will have access to 
     those data banks, and under what checks-and-balances? Will 
     the public have appropriate notice, opportunity to consent 
     and due process in the case mistakes are made? How will the 
     data be secured from theft, negligence and abuse, and how 
     will accuracy be ensured? In what cases should law 
     enforcement agencies be able to use this information, and 
     what safeguards should apply? There should be a general 
     presumption that Americans can know when their personal 
     information is collected, and to see, check and correct any 
       These are all questions we need to consider, and it is 
     entirely possible that Congress may decide that enacting 
     general parameters would be constructive. It is important 
     that we let RFID technology reach its potential without 
     unnecessary constraints. But it is equally important that we 
     ensure protections against privacy invasions and other 
     abuses. Technology may also help with the answers--for 
     example, ``blockers'' that deactivate RFID tags, and software 
     that thwarts spyware.

                     Beginning A National Dialogue

       There is no downside to a public dialogue about these 
     issues, but there are many dangers in waiting too long to 
     start. We need clear communication about the goals, plans and 
     uses of the technology, so that we can think in advance about 
     the best ways to encourage innovation, while conserving the 
     public's right to privacy.
       We have seen this time and time again where a potentially 
     good approach is hampered because of lack of communication 
     with Congress, the public and lack of adequate consideration 
     for privacy and civil liberties.
       Take for example the so-called CAPPS II program. No doubt 
     in a post-9/11 world, we should have an effective airline 
     screening system. But the Administration quietly put this 
     program together, collected passengers' information without 
     their knowledge and piloted this program without 
     communicating with us and before privacy protections were in 
     place. The result was a recent GAO analysis that showed 
     pervasive problems in the screening program and admissions 
     that we are now set back in our efforts to create an 
     effective screening system.
       As another example, the Administration recently funded the 
     MATRIX program to provide law enforcement access to state 
     government and commercial databases. This was potentially a 
     useful crime-fighting tool. But there was insufficient 
     information about the program and about potentially intrusive 
     data mining capabilities, and there were unaddressed concerns 
     about privacy protections. Now 11 out of 16 states 
     participating in the program have pulled out--many, citing 
     privacy concerns--thus hampering the effectiveness of the 
     information sharing program. Again, had some of these issues 
     been vetted in advance, we may have been able to enhance law 
     enforcement intelligence.
       Just recently, there were reports about the FBI's new 
     Strategic Medical Intelligence program, in which doctors have 
     been enlisted to report to the FBI ``any suspicious event,'' 
     such as an unusual rash or a lost finger. The goal of 
     preventing bio-terrorism is important. But there are many 
     unanswered questions about the program's privacy protections 
     and its ability to identify truly suspicious events and not 
     unrelated personal medical situations. Hopefully, this 
     program will not be hampered by lack of communication and 
       I have written oversight letters to the Justice Department 
     and to the Department of Homeland Security on all of these 
     issues and am waiting for their responses.
       I want to make sure that mistakes like those are not 
     repeated, especially with RFID technology, where there is so 
     much potential value. That is why I asked to speak with you 
     today, to begin the process of encouraging public dialogue in 
     both the commercial and public sectors before the RFID genie 
     is let fully out of its bottle.
       This is a dialogue that should cut across the political 
     spectrum, and it should include the possibility of 
     constructive, bipartisan congressional hearings. The earlier 
     we begin this discussion, the greater the prospects for 
     success in reaching consensus on a set of guiding principles.
       When several of us from both parties banded together years 
     ago to found the Congressional Internet Caucus, we were 
     united by our appreciation for what the Internet would do for 
     our society. Years later, we remain united, we remain 
     optimistic, and partisanship has never interfered in the 
     Caucus's work.
       That is the spirit in which I hope a discussion can now 
     begin on micro-monitoring.
       Thank you for your interest in these cutting-edge issues, 
     and thanks for this opportunity to share some ideas with you.