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Outlawing Employer Requirements that Workers Get RFID Chip Implants: Why it's the Right Thing for States to Do, Although Current Statutes May Need Refinement


Tuesday, Oct. 16, 2007

Just last week, California became the third state (after North Dakota and Wisconsin) to prohibit employers from forcing employees to have Radio Frequency Identification Device (RFID) chips implanted under their skin. Other states are considering similar legislation.

Some industry groups have called the bill unnecessary, but they are wrong. The technology exists, and people already getting RFID implants. Moreover, there is at least one precedent for employer use: During 2006, a Cincinnati video surveillance company asked two employees who work in its secure data center to be implanted with RFIDs embedded in their forearms, and they did so. It was the first time in the United States that workers were chipped on the job.

Accordingly, now is the best time for states to definitively set their public policy on this issue: People must be able to choose whether to have privacy-invading devices embedded in their bodies. Moreover, "choosing" to do so in order to work is not a sufficiently free "choice."

In this column, I will describe the current status of RFID implants for humans in the U.S., and the new California law. In addition, I will address arguments that it is too paternalistic in preventing employees from "choosing" to get RFID implants to qualify themselves for a job.

RFID Implants for Humans: The Current Situation

In 2004, the United States Food and Drug Administration approved an RFID chip -- the grain-of-rice-sized, antenna-containing VeriChip -- for implantation in humans. When a person's body is scanned, the information on the chip can be read.

Since then, VeriChips reportedly have been implanted in 2,000 people. One of them is reportedly Tommy Thompson, former secretary of the U.S. Department of Health and Human Services, who has been a board member of Applied Digital Solutions, maker of the VeriChip. Thompson volunteered to be chipped to show that the device is safe.

Such chips have many beneficial uses - including the medical uses upon which Applied Digital Solutions has built its marketing campaign. For example, healthcare professionals can scan a RFID chip to access the medical history of a person who is unconscious or otherwise unable to communicate. Chips could also be used to verify the identity of persons with Alzheimer's who might wander from home.

Unfortunately, however, RFID chips may also have troubling uses as well -- uses that will compromise freedom and privacy. It is now common practice for employees to be required to display an access card at a scanner to access secure areas or enter the workplace. What if employers begin to use RFID implants to constantly monitor employees' movements, and will not hire anyone who refuses to get an implant? And what if unauthorized persons figured out how to read implants from afar? That is where state laws like California's come in.

The California Law

The new California law prohibits a person from requiring, coercing, or compelling any other individual to undergo the subcutaneous implanting of an identification device, including RFID devices.

The law not only applies to employers, but makes it similarly illegal for a parent to force a child to implant a chip, or for a guardian to do so for an elderly or incompetent person. Thus, parents could not use the chip to track runaway children. Competent persons, however, presumably could sign papers authorizing future implantation if they were to become incompetent.

The law specifies civil penalties for violation, and provides a three-year statute of limitations period during which an aggrieved party can sue a violator for damages and injunctive relief. The initial civil penalty for violation ranges up to $10,000. In addition, a violator may incur additional penalties of no more than $1,000 for each day the violation continues, uncorrected. (Presumably, correction would mean chip removal.) Punitive damages may also be awarded upon proof of the defendant's malice, oppression, fraud, or duress.

Possible Flaws in the California Law: Is It Broad Enough? Too Paternalistic?

Some commentators believe the law isn't broad enough; others think it should be much narrower.

Those who feel the law isn't broad enough have pointed out that it might not keep up with future or current technology. For instance, forcing an employee to swallow a chip might also be effective, but might not count as subcutaneous implantation. This is an important point that may suggest the need to amend laws in the near future.

On the other hand, those who feel the law is too narrow agree that no one should be physically compelled to have a chip implantation, but believe - based on libertarian philosophy - that employees should be able to voluntarily sign contracts that require implantation of RFID chips, just as they can agree to other job conditions.

The problem, however, is that employees' consent may not be truly voluntary. An employee who is only qualified to work in a particular industrial sector may, in effect, have no choice but to be chipped. Refusing to be chipped in positions that involve security may mean getting a reputation for being potentially disloyal or untrustworthy. Employers also may spring contract modifications upon employees at the last minute, or once they are already working.

Even if we assume - quite unrealistically - that RFID chip implantation would, in fact, be sufficiently voluntary, other considerations still persist. Unlike other job conditions, this one involves privacy and bodily integrity; we may simply deem implantation beyond the pale of what one should be asked to agree to do in an employment context. In addition, whistleblowers may be too afraid ever to speak out, if their every movement is tracked by an RFID.

Though Coercion Is Off-Limits, What About Incentives for Chip Users and/or Major Inconvenience for Non-Chip-Users?

Of course, there will always be a problem in trying to determine what constitutes coercion. Is it coercive for an employer to offer incentives, or bonuses, to employees who choose to be chipped?

Moreover, even if employers themselves are not coercive, modern living may exert a significant coercive effect on the consumer. Just as it is hard to get by without a credit card and debit card nowadays, it may someday be hard not to have an RFID implant.

Thus, some commentators have suggested that future legislation should also expressly forbid employer incentives for RFID implants, and require any company that offers RFID-based services to accept non-implanted RFID (such as a swipe card).

A Concern for the Future: Government-Required RFID Chips

Finally, another concern - one beyond the scope of this column -- is that widespread use and acceptance of RFID chips in private industry will lead to fewer objections to the government's eventually use of RFID chips.

Already, some news reports state that the U.S. military is considering using RFID chips. Unlike private industry, the government will have to abide by constitutional restrictions in doing so. Still, government-mandated chips are a disturbing prospect.

Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

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