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What Legal Questions Are The New Chip Implants For Humans Likely To Raise?

Tuesday, May. 14, 2002

Last Friday, a Florida husband and wife and their fourteen-year-old son were each implanted with a computer chip called the "Verichip." Each tiny chip contains identification numbers that correspond to medical information about each family member, which is kept in a separate database.

The company that produces Verichips, Applied Digital Solutions, is touting them for situations in which there is a medical emergency involving a person who is unconscious or mentally impaired, and cannot provide an accurate medical history to doctors or nurses at the very moment when it could matter most. Verichip could prove invaluable in such an emergency.

After Verichip, the company's next product will be Digital Angel, which resembles a pager and uses tracking similar to the Global Positioning System (GPS) to follow people's movements. Digital Angel is already being used in a pilot program to track Los Angeles parolees.

It is also likely that GPS chips for implantation in humans will also be available in the near future. And inevitably, Verichip or other companies' similar products are likely to be used to encode not only medically important information, but other information as well.

Based on these developments, one can easily see how, quite soon, future developments relating to the use of information chips, GPS pagers, and even GPS chips are likely to raise very serious legal questions.

Among the questions are: Could the government mandate chips like these -containing information, GPS systems, or both - for all citizens (or all legal aliens), or does the law require that we always have a right to reject them? What about classes of citizens, such as government employees, who have traditionally been allowed to contract away their rights? And what about ex-felons, who have been thought to have forfeited many of their rights as citizens by virtue of their prior conduct? Finally, is there any way that, conversely, the chips might actually enhance our civil rights and civil liberties?

Yet a close examination not only of chips' harms, but also of their virtues, shows that we should keep an open mind as to their potential benefits, especially in the area of law enforcement and personal liberty. In some ways, chips might make us less free, but in other ways, more.

Why the Government Cannot Chip You - Unless You Work For the Government

It is important to stress that the government could never simply require every citizen to be implanted with a chip containing a GPS system, information (medical or otherwise), or both. To a virtual certainty, the Supreme Court would unanimously hold such a law to be unconstitutional, as a violation of the Fourth Amendment - and probably of other Amendments as well. This would probably also be the case, especially based on more recent Court precedents, with respect to legal aliens as well.

However, what if the person the government would like to chip is a government employee? In that event, the situation could be much more complex, and the legal precedents far more mixed and conflicted.

Consider that government employees, the Supreme Court has held, can be forced to give up their First Amendment rights by contract, as a condition of working for the government. Would the Court hold, similarly, that government employees, as a term in their contracts, can be required to be chipped, and thus to give up their Fourth Amendment rights?

That remains to be seen - and I would not be confident, especially in the current climate, that the Court would strike down a law broadly mandating "chip contracts" for high-security government employees. For example, spies within our government who might become counter-spies for foreign governments would be easier to follow and catch if they were forced to be chipped with GPS.

When the chips are so useful, for purposes like these, and employees "voluntarily" contract to have them implanted, would the Court really stand in the way?

Why Ex-Felons May Be Legally Forced to Be Chipped

Meanwhile, the situation of ex-felons, whose rights are already constricted, is even more precarious that that of government employees who may have to lose their jobs if they resist being chipped. Ex-felons can already be stripped of the right to vote, the most basic right in a democracy. They also can be placed under stringent probation conditions (including house arrest), and sometimes are even required to wear an ankle bracelet for monitoring purposes.

Considering that Digital Angel is already being used in Los Angeles in a pilot program for parolees, as mentioned above, can either informational or GPS system chips be far behind?

In combination with handhelds that could read the chips, information chips for ex-felons could act like a personalized Megan's Law, informing those who come into contact with a felon of his past. Is that a convicted pedophile hanging around the playground? With chips, one could find out very fast, and protect the children rapidly.

Meanwhile, if GPS chips could be imbedded so deeply as to be very hard to remove, they could make recidivist suspects' flight futile, and leave many fewer cases for America's Most Wanted to solve.

Furthermore, GPS and information chips also may ultimately be an alternative to incarceration, house arrest, or ankle bracelets. Potentially cheaper than prison, they may be a way to stem the expansion of prisons and prison budgets that has plagued us.

If so, this is likely to be a development that leaves prisoners' rights advocates deeply ambivalent - for good reason.

An Issue About Which Prisoners' Advocates Are Likely to Be Ambivalent

On the one hand, systems like Digital Angel or a future human GPS chip offer liberty only at the price of an incursion on privacy. But on the other hand, they do promise somewhat more liberty for prisoners by holding out the hope of earlier and more frequent release.

For instance, a serial date rapist won't get many dates if the women he asks out can read his information chip first - or, at least, his first dates will be likely to occur in public places in which women are safer spending time with him. A chip thus both makes him less of a threat, and limits his privacy and freedom. Similarly, a serial shoplifter may be surveilled especially carefully in, or even barred from, stores that can read his or her chip. (Watch out, Winona!)

For prisoners' rights advocates, thus, chips may offer a Faustian bargain. They may allow the criminal to live in society rather than serving a lengthy jail term for the crime. But they also will force him or her to live with that crime daily, and to live in a constricted world in which he or she, in effect, has less freedom than other people.

Despite their obvious potential for abuse, information and GPS chips could actually end up being an asset, as long as their implant is truly voluntary. Their value is likely, however, to depend on what information the chips encode, and how quickly GPS can be used to locate someone with a GPS chip. If the lag time between the moment an emergency call is sounded, and the moment the person is located by GPS, is brief, then a GPS chip might be a strong protection against harm.

Many people, especially women and children, currently suffer from sharp constraints on their freedom because of the limited set of places where they can travel, especially after dark. Could personal GPS systems prevent crime by ensuring that if trouble occurred, help (whether from private companies, relatives or friends, or police) would arrive - or deter crime by ensuring that if it occurred, it would surely be punished?

Kidnap victims who cannot be located, and bodies that cannot be identified, might become a thing of the past if voluntary chips became common. So would hikers who end up lost in the forest for days, and mountain plane crash victims who cannot be located in the driving snow.

Daniel Pearl might be alive now if he had been chipped. We might know the fate of Chandra Levy and of the many others who, like her, have disappeared without a trace, if they had been chipped. Meanwhile, with chips, children kidnapped by one parent might be found and transferred to their proper custodial parents. Finally, unless the chips were crushed, if the World Trade Center victims had been chipped, their families would not have had to wait, and to search area hospitals for agonizing days, in order to learn the fate of their loved ones.

In setting forth our fears about chipping humans, we should not forget the possibilities chips can offer of improving our lives - not only by improving the quality of medical services we can expect, but also by expanding the freedom with which we can live.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her forthcoming novel Three will be published in French translation by Actes Sud.

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