The Technology Requirements of the First Electronic Monitoring Agreement in US for Zappers, Phantomware, and Other Sales Suppression Devices

Abstract

On August 30, 2017, a plea was entered in the case of case of State of Washington v. Wong, Wash. Super. Ct., No. 16-1-00179-0, and as a result the first electronic monitoring agreement of sales transactions in the US (the “Monitoring Agreement”) was legislatively imposed on a retail business. The Monitoring Agreement was negotiated between the State of Washington Department of Revenue (the “WA DOR”) and the taxpayer over a period of several months and is comprised of two parts: the basic agreement, which covered the obligations and rights of the parties, and an appendix, which defines the scope of sales information to be monitored, and the technological means by which that information is gathered, secured from manipulation, and transmitted electronically to the DOR. This paper focuses upon the technology requirements in this first-of-its-kind electronic monitoring agreement between a revenue authority and a taxpayer in the US. The basic agreement, which not only delineates the specific obligations of the taxpayer to provide the WA DOR with real time access to retail sales information, but also sets out various protections for the taxpayer, such as limitations on possible allegations of breach, rights to cure, and administrative adjudication of material disputes, all designed to protect the taxpayers right to continue in business, will be discussed in a separate follow-up article. The problem this agreement seeks to address is sales suppression at the point of sale (POS). Not traditional sales suppression, or skimming with double tills, but sophisticated technology-assisted skimming. The specific targets are programs known as Zappers and Phantomware, which are used with POS systems or electronic cash registers (ECRs) to manipulate sales figures. Once installed, an electronic monitoring system will solve other types of suppression, like internal theft, open till, misuse of legitimate functions such as training mode, or voided transactions, but those frauds are not its immediate target.