Candyce Thompson

MMI407
Fall 2009

LEGAL AND ETHICAL ISSUES ARISING FROM THE USE OF HUMAN-

IMPLANTABLE RFID CHIPS

Imagine registering or checking into a hospital the same way as one would
check into a hotel. Imagine your prescription being filled expediently, no waiting at
the pharmacy. That’s exactly where healthcare is heading through the use of RDIF
systems in humans. Although there may be much controversy regarding the
legalities and use of the RDIF in humans, today it is possible to implant microchips
in the human body in order to restore bodily functions or to substitute some body
parts with prostheses and artificial limbs. Radio Frequency Identification, RFID is a
method of automatic identification that uses transporters called RFID tags. RFID
microchips are ethically not problematic if used to serve in a medical need such as
cardiac pacemakers. However, although RFID microchips may be used to repair
deficient bodily capabilities they can also be misused, if they are accessible via
digital networks. These microchips are sometimes viewed as a threat to human
dignity and particularly to the integrity of the human body. However, other implants
might be seen as a means for restoring damaged human body parts and therefore
as a contribution to the promotion of human dignity. The idea of implanting
microchips under our skin to repair and even to enhance human capabilities gives
rise to science fiction visions with threat as well as beneficial characteristics.
However, the implantation of microchips is already taking place with the potential
for individual and social forms of control. The objective of this paper is to discuss
the legal and ethical issues arising from the use of human-implantable RFID
microchips, propose clear ethical boundaries, legal principles and suggests several
steps that should be taken by responsible regulators.
Active Medical Devices
The history of implantable devices in medicine practice started in the 1960s
with the development of the first heart pacemakers. Systems for bladder
stimulation that allow paraplegics to control voiding followed in the 1980s. The most
recent examples of active implants for functional electrical stimulation are
stimulators to treat pain in patients with tumors and trembling caused by
Parkinson’s disease, and to restore the grasp function in quadriplegics. Typical
devices include the following cardiovascular pacers for patients with conduction
disorders or heart failure, cochlear implants for patients needing assistance with
hearing - this bypasses the damaged part to send sound signals directly to the
auditory nerve, and auditory brainstem implant which is an auditory prosthesis that
bypasses the cochlea and auditory nerve to help individuals who cannot benefit
from a cochlear implant because the auditory nerves are not working. The
brainstem implant directly stimulates the cochlear nucleus situated in the
brainstem. Other devices include implantable programmable drug delivery pumps
for the administration of medication for patients with Multiple Sclerosis; insulin
pump for Diabetes; implantable Neurostimulation devices that modify electrical

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nerve activity for spinal cord stimulation for chronic pain management; sacral nerve
stimulation for treatment of refractory urinary urge incontinence; and Vagus nerve
stimulation for seizure control in epilepsy or for mood control in severe depression
case.
Three Types of Tags:
There are three types of microchips: read only, read-write and read-write with
tracking capabilities.
1. Read-Only

The simplest form of the device has a read-only character, similar to that used
in animals. They can be used to identify Alzheimer's patients, children and the
unconscious as well as a national identification card, based upon the identifying
number carried on the microchip. However, there are objections to the use of any
numbering system for nationwide identification. The debate over the legality of
national identification cards is not a new debate. A system of national identification
would entail a specific number for each person, a means for indicating or recording
the number, and a registry. The social security number is thought to be an
identifier, however people may circumvent this because some people have more
than one number or more than one person may have the same number. In addition,
any social security cards issued prior to 1971 were based on information that was
provided by individuals, but not verified. Another issue is the current system
requires underlying documents for verification before a social security number is
issued. This information is subject to fraud because of the ease of obtaining
fraudulent documents such as birth certificates and driver's licenses. This is why a
social security number may not be suitable to use as a national identification card.
A solution would be the use of alternatives that encode certain physical
characteristics. Biometric identifiers should be used because they contain inherent
validation mechanisms. Choosing a random number as the identifier is not a great
idea because the number only has meaning when connected to an individual. By
contrast, a biometric identifier representing a particular human characteristic may
be clearly matched to an individual. Using a numerical expression for the unique
contours of an individual's iris is a better choice.
Other concerns were raised regarding the use of a system for country-wide
identification purposes that was proposed in Australia. Several problematic issues in
the introduction and regulation of a national identification card in Australia were:
inaccurate, incomplete, irrelevant or misleading data and unauthorized disclosure of
personal data. The most serious overtone was "requiring each citizen to carry a
government number is another step along the path of treating people as a national
resource, which means government property, whereas the liberal democratic view
has always been that the government is the people's `property'."1
Problems with the introduction of a national identification card in the U.S. would
be similar to those of the Australian system. Other problems revolve around the
privacy implications connected with the maintenance of a large database or registry
to connect the identifier to actual information. When a computer is used to search
for all the data on many different databases concerning a person using an identifier,
there is an increased risk of intrusion into personal privacy, especially where the
information can be obtained by or disseminated to others. The use of a microchip
implant would serve the purpose of a tamper-resistant identification card, but it

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would also be connected to a computer-based registry to access desired information
about an individual. The issue of what identifier the microchip will be coded with
must be addressed before the microchip implant can effectively serve as a national
identifier in the U.S.
2. Read-write
The microchip implant can be a read-write device. This type of microchip can
carry information which can be expanded. It allows the storage of variable data and
is programmable at a distance. Moving forward, a microchip that carries a person's
medical history will not have to be removed in order to add new medical history as
the patient’s health changes. The use of these chips to store medical information in
this capacity might require the encoding of an enormous amount of data.
Technology is evolving such that this will not be a problem in the near future.

3. Read-write and Tracking

In addition to the read-write capabilities, a microchip can also emit a radio
signal which can be tracked. With a microchip implant, constant monitoring is
possible. If each chip emitted a signal of a unique identifying frequency, implanted
individuals can be tracked by simply dialing up the correct signal. The implantable
microchip can be monitored from the nurse’s station, police station, a car or even
home, in contrast to tethering devices, which only work if the tagged individual
remains close to the monitoring unit in his home. The fact that the receiver is
mobile allows the tagged individual to be tracked anywhere.
Devices and Manufacturers
There are many manufacturers of the RFID devices and many more uses of the
device. Millions of radio frequency identification (RFID) tags have been sold since
the early 1980s. They are used for livestock, pet, laboratory animals, and
endangered-species identification. This technology contains no chemical or battery.
The chip never runs down and has a life expectancy of 20 years. VeriChip or the
“human bar code is a sub-dermal RFID device, about the size of a grain of rice,
which is implanted in the fatty tissue below the triceps. Current applications of the
VeriChip include medical records and healthcare information - where blood type,
potential allergies and medical history can be documented, personal information
and identity. In the Baja Beach Club in Spain and the Netherlands, people use the
VeriChip like a smartcard to speed up drink orders and payment. Financial
information can also be stored. The tube-shaped VeriChip includes a memory that
holds 128 characters of information, an electromagnetic coil for transmitting data
and a tuning capacitor, all encapsulated within a silicone-and-glass enclosure. The
passive RF unit, which operates at 125 kHz, is activated by moving a company-
designed scanner within about a foot of the chip. Doing so excites the coil and
"wakes up" the chip, enabling it to transmit data. 2 “Called the VeriChip, the device
could open up a broad new segment for the $900 million-a-year RFID business,
especially if society embraces the idea of using microchips for human identification.
Applied Digital executives ultimately believe that the worldwide market for such
implantable chips could reach $70 billion per year. “3The Bavarian company Ident
Technology offers tracking devices using the human body as a digital data
transmitter.
In September of 2001, Applied Digital Solutions implanted its first human chip
when a New Jersey surgeon, Richard Seelig, injected two of the chips into himself-

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one in his left forearm and the other near the artificial hip in his right leg. "He was
motivated after he saw firefighters at the World Trade Center in September writing
their Social Security numbers on their forearms with Magic Markers," Bolton said.
"He thought that there had to be a more sophisticated way of doing an
identification."4 Applied Digital's executives said the ability to inject the chips opens
up a variety of RFID applications in high-security situations, as well other types of
human identification systems. The chips can be implanted in young children or in
adults with Alzheimer's disease to help officials identify people who can't identify
themselves.
Though the technology is quite useful, some problems have already surfaced.
The first arises because of a multiple manufacturers. Each makes his own scanner
to read his particular chips, not those of competitors. The second is that because of
the technology is relatively new, their longevity is uncertain. The SmartDevice is a
microchip manufactured by a subsidiary of Hughes Aircraft C. The chip is a passive
transponder, without any power source, which has meant it can be kept very small.
The information is non volatile and can be activated by low frequency radio waves
and so read in a manner not unlike the reading of bar coded items. It is an
application-specific integrated circuit. It has a non-magnetic, ferrite core and a
copper antenna and is encased in biocompatible glass and as it is so small it can
pass through the bore of a needle to be inserted.5

Research on RFID Microchips

There are many RFID microchip devices currently available. Biosensors or Micro
Electro-Mechanical System devices are sensors implanted inside the human body
for accurate monitoring of inaccessible parts of the body. The biosensors form a
network and collectively monitor the health condition of their host. This involves the
collection of data about physiological parameters like blood pressure or glucose
levels and making decisions based on it, such as alerting doctors to a potential
medical crisis. The information to be transmitted is crucial medical information that
is required by law to be secure. Consequently, information technology is a critical
component of these biological implants that present challenging research issues.
There are several biomedical applications where this technology will be useful.
Examples include sensors implanted in the brain of patients with Parkinson's
disease or epilepsy, acoustic and optical biosensor arrays for blood analysis, and
sensors implanted in the body of a recovering cancer patient to detect cancer cells.
Artificial hippocampus is a brain prosthesis that is an implantable brain chip that
could restore or enhance memory. Unlike devices such as cochlear implants, which
merely stimulate brain activity, this chip implant will perform the same processes as
the damaged part of the brain it is replacing. This technology could help people who
have suffered brain damage due to stroke, epilepsy or Alzheimer's disease. With a
cortical implant, information from a tiny digital camera could be transmitted to
electrodes implanted in the visual cortex, bypassing the non-working retina or optic
nerve in a blind person. Ocular implant and artificial retinas will enable doctors to
replace damaged retinas. Brain-computer interfaces or direct brain control would
allow input-output interactions. These systems could allow people to use signals
directly from the brain for communication and control of movement. Although
human studies demonstrate the feasibility of using brain signals to command and
control external devices, researchers emphasize that many years of development
and clinical testing will be required before such devices.

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 RFID Surveillance and Tracking Consumers
RFID technology can be combined with other technologies like GPS and will
exponentially increase the possibilities of tracing and tracking consumers. There are
readers and tags everywhere, ranging from the workplace to public transportation
to individuals’ homes that now facilitate this operation. Tracing and tracking raise
serious ethical issues. For instance, the control of children’s behavior by parents,
the surveillance of pupils’ whereabouts by their schools or the controversial issue of
RFID chips implanted in human body, are all applications with high ethical
implications. An ethical assessment prior the implementation of these applications
is necessary. Research and development of RFID applications aimed at tracing and
tracking citizens should not be funded by any means other than private. A
committee dealing with ethics should be created and should be consulted on any
RFID technology applications raising potential ethical risks.

LEGAL Principles
The level of intrusion necessary to implant may be objectionable. There are
many legal rights which would be impinged upon. The technology has not yet been
perfected and there is a need to address the legal problems because these devices
are now being used. Because of the drastic reductions in personal liberty and
privacy that such implantation represents, legal ramifications need to be addressed.
At some point, there has to be a mandatory program of implantation for all citizens
for this identification program to be effective. A system using this technology may
be difficult to implement despite limitations of individual freedoms because its
advantages will be extremely attractive. The positive applications may outweigh the
detrimental legal consequences at that time. We need to consider the repercussions
that mandatory microchip implantation would have. There are no rules that are
specifically applicable to RFID microchips in the human body. Therefore, general
legal principles underlying national legislation and international instruments will be
used. These general principles can provide the guidance required to outline the
legal standards necessary for the regulation of a technology that modifies the body
and its relationship with the environment and thereby impacts deeply on personal
identity and life.
The American Constitution gives us the general principles of dignity, freedom,
equality, solidarity, citizenship and justice, as well as integrity and inviolability of
the body, with particular regard to informed consent and personal data protection.
The European Constitution attaches specific importance to the Charter of
Fundamental Rights of the EU, which is currently Part II of the Treaty
Establishing a Constitution for Europe. Data protection issues are developed in
Directives 95/46 and 2002/58. The precautionary principle is expressly referred to in
Article 174 of the EC Treaty as well as, in greater detail, by the Commission’s
Communication. Active medical devices are defined and regulated by Directive
90/385. 6 National constitutional charters and domestic laws contain several
provisions applying to respect for dignity, protection of physical integrity and
health, informed consent, and transplantation matters. A number of judicial and
administrative decisions deal directly or indirectly with the issues addressed in this
Opinion, such as the judgment of October 14, 2004 by the European Court of Justice
in the Omega v. Oberbürgermeister Bonn case (Case C-36/02) and the Order of
October 12, 2004 by the US Food and Drug Administration on the testing of the
VeriChip for medical purposes.7 These cases allow us to derive a set of principles on

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which the legal framework can be built and on which the lawfulness of RFID
microchips in the human body can be assessed.

Existing European Legislation

The EU Data Protection Directive applies to data processed by automated

means and aims to protect the rights and freedoms of persons with respect to the
processing of personal data. This directive is technologically neutral and applies to
RFID applications that collect information that is directly or indirectly linked to an
identifiable or identified person or that store personal data. The definition of
personal data is becoming more and more difficult to interpret as well as terms such
as implicit consent, personal information and legitimate interests. The opinion of the
Article 29 Working Party of Directive 1995/46/EC on the concept of personal data is
useful in providing general guidance.8 The data collected by RFID technology and
other NFC technologies most relates to an “identifiable” person in the sense of
Directive 1995/46/EC, for instance through the combination of different pieces of
information or data relating to objects. This is problematic because even if a
person’s name is never revealed, the technology gives the means for any third
party to identify people.
Many RFID applications are not covered by the ePrivacy Directive. The Directive
requires that a processing of personal data is taking place within the context of a
public communications network or a publicly available electronic communications
service. However, RFID technology enables a communication without the need of a
publicly available network. 9 Lack of enforcement of existing rules is equally
essential. Several actions should be put in place to strengthen the respect of these
rules such as compulsory data protection audits, regular compliance verification
schemes and deterrent sanctions at national levels. Codes of conduct on the
application of the existing directives to new technologies need to be created and
guidelines should be formed.

Dignity
The Charter of Fundamental Rights of the European Union defines the dignity
principle. Article 1 states that human dignity is inviolable. This principle was upheld
as absolute boundary in the Omega decision, which considered it lawful for German
authorities to prohibit a game called “Playing at Killing” because it was found to be
“a threat to public policy by reason of the fact that, in accordance with the concept
prevailing in the public opinion, the commercial exploitation of games involving the
simulated killing of human beings infringed a fundamental value, enshrined in the
national constitution, namely human dignity”. This “affront to human dignity”
legitimizes a prohibition limiting freedom of enterprise and also acts as a boundary
on the freedom of individual choice, because it rules out that the players’ informed
consent can be regarded as an item making the game in question something that is
socially and legally acceptable. Therefore, the dignity principle should be regarded
as a tool to identify the cases in which the body should be absolutely inviolable. In
addition, the French Civil Code and Article 2 in the Italian Data Protection Code
expressly mention dignity. This also applies in international instruments such as the
Helsinki Declaration (1964), the Council of Europe’s Convention on Human Rights

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and Biomedicine (1997), which begins by re-affirming the principle of human
dignity, and UNESCO’s Universal Declaration on the Human Genome (1997). 10
Dignity is a universal and fundamental to human beings. “Moreover, Article 1 of the
Charter of Fundamental Rights provides that dignity is to be not only “respected”,
but also “protected” – after the pattern followed in the German Grundgesetz. This
means that public authorities are required not only to refrain from tampering or
interfering with an individual’s private sphere, but also to take steps actively in
order to bring about the conditions allowing individuals to live with dignity.”11
Privacy and Data Protection
The view that data subjects are not free to make whatever use of their own
bodies they wish is confirmed, albeit indirectly, by Article 8(2) of EC Directive 95/46
on personal data protection. Here, it is stated that States can provide that the data
subject’s express consent is not enough to allow others to use his sensitive data
concerning sex life, opinions, health, ethnic origin, without an ad hoc authorization
issued, for instance, by a supervisory authority (see Section 26 of the Italian
Personal Data Protection Code). This is meant to protect the most sensitive portion
of the electronic body by preventing data subjects themselves from making
available parts of their electronic bodies in such a manner as to jeopardize their
integrity.
From a more general standpoint, the Charter of Fundamental Rights of the EU
has drawn distinctions between the protection of private and family life (Article 7),
and the protection of personal data (Article 8), which consequently has become an
autonomous individual right. This kind of protection is opposed to any relevant
intrusion into one’s private sphere and also confers the right of informational self
determination on each individual. This includes the right to remain master of the
data concerning the individual. Additionally, this mandates respect for both the
physical and the electronic body. Protection of personal data in the EU is based on
EC Directive 95/46 as well as on EC Directive 2002/58.12 It contains specific
provisions applying to the location of individuals. The set of principles and rules on
personal data protection is currently shared by all the Member States of the EU as
well as by several other states that have endorsed a strong data protection
standard based detailed information coupled with the data subjects’ explicit
consent. Therefore, any type of RFID implant requires a strict preliminary evaluation
in order to assess the privacy impact.
Precautionary Principle
The precautionary principle does not require boundaries that are impassable. It
is a general risk management tool, which was originally restricted to environmental
matters. In the Commission’s Communication of February 2000 it is stated that “The
precautionary principle is not defined in the Treaty, which prescribes it only once -
to protect the environment. But in practice, its scope is much wider, and specifically
where preliminary objective scientific evaluation indicates that there are reasonable
grounds for concern that the potentially dangerous effects on the environment,
human, animal or plant health may be inconsistent with the high level of protection
chosen for the Community” Accordingly, the Commission believes that the
precautionary principle is a general principle, whose scope goes beyond the EU, as
shown by several international instruments starting with the Declaration on
Environment and Development adopted in Rio de Janeiro in 1992. 13

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 The precautionary principle can be applied if there is a risk, possibility of harm,
and scientific uncertainty concerning the realization of this harm. If the
precautionary principle is invoked, the risk manager has to decide on precautionary
actions that are proportionate to the potential harm being mitigated and which do
not attempt to create zero risk situations. The risk management actions should be
aimed at identifying the acceptable risk threshold with regard to the values at
stake. Respect for the human body deserves the highest legal protection. However,
the precautionary principle is of a procedural rather than substantive nature, which
means that it is not applied to gauge an innovation as such but rather its effects. If
the negative effects are found to be absent, or if the application mechanisms are
modified, then a given scientific or technological innovation may be regarded as
acceptable. Therefore, the precautionary principle is a dynamic tool that can follow
the evolution of a sector and continuously verify that the acceptability conditions of
a given innovation are fulfilled and enhance governance.
The risks related to RFID microchips were highlighted by the Order of the US
Food and Drug Administration in respect of a subcutaneous chip called VeriChip
“adverse tissue reaction; migration of the implanted transponder; compromised
information security; failure of implanted transponder; failure of inserter; failure of
electronic scanner; electromagnetic interference; electrical hazards; magnetic
resonance imaging incompatibility; and needle stick”. 14Some people wonder if the
tests on the VeriChip were authorized for medical purposes in the face of such a
detailed list of potential risks. The authorization might have been denied if the
precautionary principle had been taken into account in regard to those risks with
high uncertainty.

Data Minimization, Purpose Specification and Relevance

It is important to address the principles of data minimization, purpose
specification, proportionality, and relevance. All of these principles are unrelated to
the lawfulness of using the individual RFID microchips, but relate more to the
specific conditions applying to their use and the context within which they are used.
The data minimization principle is referred to in Article 16(2) of the French Civil
Code, where it is provided that it can only violate the integrity of the human body in
the case of personal necessity and should not be used if there are less intrusive
means. The purpose specification principle is addressed by the Convention on
Human Rights and Biomedicine which provide that tests predictive of genetic
diseases may be performed only for health purposes or for scientific research linked
to health purposes. Basically, a relationship is established between specific
circumstances, available tools, and reference values. Only those tools that, within a
given context, pass the consistency test with such values may be used lawfully.
Autonomy
The limitations on RFID microchips in the human body should be assessed
further by examining general principles and rules concerning the autonomy of an
individual’s freedom to choose how to use one’s body. We have the freedom of
choice regarding our own health and freedom from external controls and influence.
The considerations made with respect of integrity and inviolability principles still
apply to any choice related to one’s body and there is a requirement for consent.
Consent is necessary, but is not sufficient, in order to legitimize the use of RFID
chips. There are bound to be risks that will increase with the adoption of unified

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technical standards, which may allow data to be read and modified also by entities
other than the person and the organizations lawfully managing the connection. Both
circumstances are clearly in conflict with data protection rules concerning collection
and processing of the information. Re-writing the data also impacts the right to
personal identity.

Infringed Rights - United States

The right to privacy may be inferred from the language of the First, Fourth, Fifth
and Ninth Amendments. In addition, it has been established through common law
precedents. In 1891, Justice Gray of the U.S. Supreme Court indicated that "[n]o
right is held more sacred, or is more carefully guarded, by the common law, than
the right of every individual to the possession and control of his own person, free
from all restraint or interference of others, unless by clear and unquestionable
authority of law."15 Justice Cardozo in his famous statement that "[e]very human
being of adult years and sound mind has a right to determine what shall be done
with his own body."16 The right to privacy defined by Justices Gray and Cardozo is a
right to bodily integrity. That right is evident in cases concerning the terminally ill.
These situations involve terminally ill adults who wish to end their life. In Satz v.
Perlmutter, a competent terminally ill adult was allowed to decide to terminate life
support, based on his rights under the common law doctrine of bodily integrity.
However, under the law of some states, a person in a vegetative state must be
demonstrated, with clear and convincing evidence, to have earlier expressed a
desire to terminate life support before the support can be removed. A second
manifestation in the common law of the right to bodily integrity is the doctrine of
informed consent. Though this doctrine allows a pregnant woman to make informed
choices for her life and the life of her fetus, legal disputes have centered around the
question of whether or not the mother must submit to a Cesarean section to save
the life of her child, even if it is against her will. An example of the use of the
doctrine of informed consent is found in In Re A.C, where a pregnant woman with
terminal lung cancer was forced by court order to have a Cesarean section. Her
difficulty in breathing was damaging to the fetus, and doctors determined that a
Cesarean section would give the fetus a greater chance for survival, though she
never agreed to the surgery. Unfortunately, two hours after the court-ordered C-
section the child died; the mother died two days later. The Court of Appeals, in
recognizing a right to bodily integrity as illustrated by the right to accept or refuse
medical treatment, said that the woman's competent informed decision to not have
a C-section should have been honored. The ability to refuse invasive surgery and
the ability to hasten death both stem from the concept of bodily integrity.
To determine the legalities of policies affecting a person's bodily integrity,
courts often apply a balancing test where the weight of the government's
regulations are compared to the weight of the individual's right to bodily integrity.
The court in In Re A.C. used this technique for "[i]n its analysis, the court balanced
A.C.'s interests of privacy and bodily integrity against the state's interest in the
potential life of the fetus, by comparing the chances of survival for each."17
Alternatively, it has been suggested that strict scrutiny is the preferable test to
determine whether or not a regulation or requirement impinges upon an individual's
right to bodily integrity since the issues involved have such serious consequences.
Therefore, some have suggested that the most rigorous of tests that require

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compelling governmental interest and least restrictive means possible must be
applied.
If the government mandated that all Americans be implanted with microchips, it
would be compelling an invasive procedure. Insertion through a needle would not
be complicated or delicate surgery, but it would nonetheless interfere with bodily
integrity. In addition to the invasiveness of the initial surgery for implantation, the
continuing presence of the microchip within the individual must also be taken into
account. In combination with the surgery, the implant represents a substantial
permanent intrusion. If a balancing analysis was used to determine whether one's
rights to bodily integrity were violated, the government would have persuasive
reasons for implantation due to the myriad of applications previously described. The
numerous uses for microchip implants would indicate that a great common good
would indeed be served by their use. Moreover, with regard to the degree of
invasiveness, this implantation does not require any in-depth surgical procedure, as
in the case of a Cesarean section.
However, intrusion upon individual's rights must also be considered. The
element of continuous intrusion elevates the consideration from one of how drastic
the surgical procedure is, to a consideration which also includes the long-term,
continuous effects. The continuous intrusion could outweigh the reasoning and tip
the balance against the government's police powers. If strict scrutiny analysis were
employed, it would be even more readily understood that implantation represented
a clear violation of individual rights. Ordinarily, this level of analysis is required only
where suspect classes are involved or where rights are being regulated.
Classification of the right to prevent foreign objects from being placed in the body
as a fundamental right is plausible, and will trigger a strict scrutiny analysis.
Although the compelling governmental interest might be evident, microchip
implantation is not the least restrictive means to achieve objectives. Mandatory
implantation would not be legal. By either mode of analysis, implantation could be
precluded because of violation of rights to bodily integrity.
The Fourth Amendment protects individuals from unreasonable searches and
seizures. A type of search which has been frequently tested for potential violation of
constitutional rights is the use of electronic surveillance. In that instance, a
bifurcated framework has been used to analyze which acts of surveillance
constitute illegal searches. This approach considers first the implications of the
attachment of the surveillance device and second the implications of continual
monitoring once a device is in place. These considerations must also take into
account the requirements of probable cause and particularity. There must be a
definite reason for suspicion necessitating the search, and the search must also be
placed within finite limits. In this section, a search will first be defined, then the
method of determination of whether or not a search is constitutional will be
explained, and finally the applicability to microchip implantation will be explored.
The courts often examine whether or not the activity under surveillance
normally has associated with it a legitimate expectation of privacy in making their
determinations as to whether or not a search that required constitutional protection
took place. This factor may be illustrated by a hypothetical surveillance of an
individual walking on the sidewalk. Privacy often has two aspects: actual
expectations and their reasonableness. Applying these to the hypothetical, just
because a pedestrian thinks sidewalk activities are private and precluded from
surveillance does not mean that they are. Legally, because of no reasonable
expectation of privacy on a sidewalk, observing the pedestrian does not amount to

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a search for Fourth Amendment purposes. The same type of question has been
asked in litigation over whether or not surveillance of a moving automobile is a
search. If a beeper is placed on an automobile for tracking, is it within the realm of
public activities and therefore a type of surveillance which is not a search? Courts
have answered that question in the affirmative, terming driving an activity
associated with a "diminished expectation of privacy,"18 not a search because "[a]
car has little capacity for escaping public scrutiny." The same reasoning has also
been applied to beepers placed on airplanes, and the use of infrared devices to
examine the heat content emanating from buildings.
The generalized concepts relating to the definition of a search have been
related to external examples of beepers or wiretapping. However, the Fourth
Amendment has also been invoked with reference to internal intrusions upon
individuals to obtain evidence which could be used against them. Examples include
the withdrawal of blood and bodily searches which require surgical procedures or
other means to extract substances from the body. In Winston v. Lee, a robber was
shot during an escape of the scene of an attempted robbery. Shortly thereafter, a
man with a gunshot wound was discovered in the vicinity. To confirm that the
suspect was connected with that particular robbery, the police wanted to compel
surgery to remove the bullet. Because of the complicated and life-threatening
surgery required to remove the bullet, the Supreme Court ruled that the surgery
would be an unreasonable search. Alternatively, other decisions have classified
these highly intrusive searches as warrantless searches rather than unreasonable
ones. Thus, it seems that the courts are unwilling to totally relinquish the power to
conduct a highly intrusive search, regardless of the conditions involved.
Arguments have also been made that taking blood samples is another example
of an internal search which may be said to implicate the Fourth Amendment, where
those samples indicate intoxication. The same reasoning has been suggested as a
reason to prevent the collection of blood samples from convicted criminals to obtain
DNA for a genetic data bank. However, these arguments have not been successful
against the claim that greater restraints on liberties are required for the convicted.
Once it has been established that a search has indeed taken place, it is thereafter
unconstitutional only if a valid warrant was not obtained prior to the search. The
warrant is evidence that the proposed search has been examined, and considered
not to infringe upon the suspect's rights. The leading case detailing the
constitutionality of the search when a warrant is provided is Katz v. United States,
which examined the constitutionality of wiretap surveillance by the government.
The petitioner had been convicted based on improperly-obtained evidence because
the safeguard of first obtaining a search warrant before bugging the phone booth
had been ignored. On appeal the court stated that "[i]n the absence of such
safeguards, this Court has never sustained a search upon the sole ground that
officers reasonably expected to find evidence of a particular crime and voluntarily
confined their activities to the least intrusive means consistent with that end." 19
The principles evolved for Fourth Amendment claims can be applied to
microchip implants. The clearest application will be to the embodiment of the
device that can read-write and track. Still, read only and read-write devices also
implicate Fourth Amendment principles because, once installed, either could be
scanned by police to obtain information about the individual. Scanning of the
microchip would be considered as a search. The first question to consider is whether
or not a search (worthy of Fourth Amendment protection) took place. Thus,
scanning or interrogation of the implanted microchip to obtain information from it is

11
the action to be evaluated. The act of implantation itself does not constitute a
search. Rather, it is subsequent actions relating to the garnering of information from
the microchip which are of consequence to the Fourth Amendment analysis.
In the case of any of the embodiments, an individual may have an expectation
of privacy as to the information on the microchip. However, it would be more
difficult to defend that expectation as a justifiable one, if the microchip carried
information of medical records on a read-write device. Because the information is
vital for the good of society, there is no reasonable expectation of privacy.
Proponents of this theory would argue that such information was available and on
record already, and that this technology merely increased the speed with which it
could be recovered. If these arguments prevail, there would be no search and no
Fourth Amendment protection. However, one court has found that personal
information should be kept private and not readily accessible. In a Doe case, this
philosophy was validated for medical information by judges who declared that "Doe
has a right to privacy (or confidentiality) in his HIV status, because his personal
medical condition is a matter that he is normally entitled to keep private."
Therefore, under Doe, retrieval of information from a microchip read-write device is
a search when the information retrievable is of a type that is normally protected.
Monitoring a read-write device with tracking capabilities could be defined as a
search if the implanted citizen were law-abiding. Because criminals have lesser
privacy rights, tracking in their case wouldn't be termed a search.
Once it has been established that a search has occurred, the Fourth
Amendment protections insure that the search is only permissible under certain
conditions: that a warrant has been issued and that the search is described with
particularity. Even if it is a possibility that blanket warrants could be issued, or that
a warrant could be easily obtained, it will be difficult to evade the particularity
requirement of the Fourth Amendment with reference to microchip implantation.
That requirement is to prevent an overbroad search which impinges on an
individual's privacy rights. If the embodiment of the device is read only or read-
write, the particularity requirement could be satisfied with a warrant. Conversely, if
the device was read-write with tracking capabilities, the search would not be
defined with particularity, as a person could be monitored at any time, in any place.
In summation, in any form, interrogation of the microchip implant can be considered
a search under the bifurcated analytical framework. The Fourth Amendment
protections to make a search constitutional could conceivably be met by the
government when the search involves certain information from read only or read-
write devices. However, if the device is used for tracking purposes, it will fail the
particularity test and thus violate the Fourth Amendment on the grounds that a
valid warrant has not been issued.
The Fifth Amendment provides, in part, that no citizen "shall be compelled in
any criminal case to be a witness against himself." Verbal self-incrimination is
commonly understood to be covered by the amendment, but it has also been
applied to removal of objects from someone's body. "[A] person is compelled to be
a witness against himself not only when he is compelled to testify, but also when...
incriminating evidence is forcibly taken from him by a contrivance of modern
science" according to a concurrence by Justice Black.20 Non-verbal communications
are not as easily categorized. For example, in a case concerning whether or not
blood withdrawn from a suspect could be used to prove intoxication, the court
commented that "[s]ince the blood test evidence, although an incriminating product
of compulsion, was neither petitioner's testimony nor evidence relating to some

12
communicative act or writing by the petitioner, it was not inadmissible on privilege
grounds." Yet later in the same opinion, Justice Brennan tempered the decision in
the following manner: "That we today hold that the Constitution does not forbid the
States minor intrusions into an individual's body under stringently limited conditions
in no way indicates that it permits more substantial intrusions, or intrusions under
other conditions." Thus, there appears to be some disagreement as to the extent of
the reach of the Fifth Amendment's protection as applied to bodily intrusions.
However, a common theme in such cases is that the courts examine the difficulty
involved in terms of the level of intrusiveness required to obtain the "non-verbal
communication," to determine whether it is constitutional.
The Fifth Amendment could be applied to the use of microchip implants in
humans because it could be a form of self-incrimination where the device has
tracking capabilities Note that the implantation itself would not be incriminating, but
the scanning or tracking of the implant could be. The question which arises is
whether or not the act of carrying the implant is self-incrimination. According to
decisions which require a communicative act such as speech or writing, the implant
would not be an example of self-incrimination worthy of Fifth Amendment
protection. Yet the carrying of the implant might properly be categorized as a
communicative act because the chip would provide for constant communication of
location. If the government has the ability to determine where someone is at all
times, that information could be used as evidence in the commission of certain
crimes. It would be analogous to the situation in which a suspect wore a beeper for
surveillance 24 hours a day for the rest of his life. In that instance, it might be most
properly characterized as self-incrimination and therefore prohibited by the Fifth
Amendment. Conversely, if the implantation were consensual, it could hardly be
said to represent self-incrimination because of acquiescence. If tracking or scanning
of the microchip is considered merely as a non-verbal communication, it may not
qualify for Fifth Amendment immunity if constitutionally obtained. Since the act of
scanning or tracking does not involve any life-threatening operation, or serious
physical disruption, but rather only the monitoring of an electronic device, it would
not be intrusive enough a method to qualify for immunity.
Property rights are protected from governmental deprivation without due
process by the Fifth and Fourteenth Amendments. Here, we focus on the latter. To
determine what is protected by the due process clauses, it is necessary to
understand what is meant by the term "property." This is constantly refined and
expanded by the courts, but basically it refers to a collection of rights held in a
particular object. They may be tangible, as in the case of land or possessions, or
intangible, as in the case of intellectual property. Property has been defined as
"every species of valuable right and interest" which may be protected by the State.
Although the concept of one's own body as one's property has not been embraced
by the courts, there is some precedent for that expansion. The law does not provide
an overtly obvious method of insulation from bodily intrusions such as mandatory
microchip implantation, but it is argued that novel situations require novel
applications and expansions of existing legal concepts.
The concept of the human body as property is not generally accepted. One
reason is fear that if the body were property, one could sell oneself or a portion
thereof to another for profit. The basic rights in property include the right to transfer
it as one wishes. However, those fears could be allayed by specific statutes covering
and limiting transfers. Even the transfer of land is subject to zoning restrictions.
Another reason for hesitation to consider the body as property is that it harkens

13
back to slavery. If the body were recognized as property, it would provide certain
advantages. Namely, the Fourteenth Amendment which insures that the individual
will not be deprived of property without due process of law could then be invoked
against intrusions into an individual's body. It may be argued however, that the
individual is already afforded Fourteenth Amendment protection through the liberty
aspect of the amendment. Liberty is generally thought to refer to personal rights in
conjunction with torts such as battery, assault and false imprisonment. These may
be categorized as external events, ones which are not the doing of the individual
himself, but rather the acts of another against the self. Conversely, property rights
in one's own body would cover the acts of the self concerning the self. Therefore the
liberty interest does not strictly apply, and the property interest in the self could
result in a right distinct from the liberty interest. The importance of this feature will
be illustrated below.

Current Indications
Evidence for some situations in which the body has been considered as
property, or at least as quasi-property, can be found in statutes and court decisions.
For example, individuals can have limited rights with respect to the corpse of
another, referred to as quasi-property rights. Surviving spouses often have the
ability to determine how to dispose of the dead. Other rights in an individual's body
are defined by the Uniform Anatomical Gift Act (UAGA) which determines how and
to whom gifts of transplantable organs can be made subsequent to the death of a
donor. Since one of the rights attached to property is the ability to alienate it, the
introduction of the UAGA serves as evidence that it is permissible to have property
rights in one's body, though they are statutorily limited.
In York v. Jones, a couple had an embryo cryogenically frozen for future use.
Later, they wished to transfer it from an in-vitro fertilization institute in Virginia to
another in California. The Virginia institute refused, citing the Cryopreservation
agreement signed by the couple which specified only one of three fates for cryo-
preserved embryos. Inter-institutional transfer was not one agreed upon. The Yorks'
argument, adopted by the court, was that the Cryopreservation Agreement was an
admission by the Institute that the Yorks had property rights in addition to contract
rights in the embryos. Thus, within the confines of a contract, the court was willing
to recognize property rights in an embryo.
In a later dispute over the ownership of frozen embryos, another court was not
as willing to go as far. The Davises had seven in-vitro fertilized embryos stored at a
clinic for later implantation. Afterwards, in divorce proceedings they disagreed over
who should get the embryos. Finding it impossible to call the embryos "persons",
and unwilling to call them "property", the court compromised by putting them in an
"interim category that entitles them to special respect because of their potential for
human life." The rights or duties entailed by the interim category were not further
elaborated upon other than to indicate that the interest of the parents was one of
ownership (where they had equal weight in determining the fate of the embryos). In
both York and Davis, the emphasis was on an embryo outside of the human body.
Property rights exerted, where granted, are still external to the human body.
In a third example, external rights were also the issue where a man sued to
obtain the monetary gain of the use of his cells to create a profitable cell line. In
part of his argument, he claimed that he had property rights in the cells removed
from him during the course of his treatment. Because he never agreed that his cells
could be used by the researchers to develop a new cell line, he claimed that they

14
had converted his property based on the belief that the cells were still his property,
because he had not released them even after they were removed from his body.
The argument had been accepted by the lower court, but was not confirmed by the
California Supreme Court. Instead, that court sustained the demurrers of the
defendants to the cause of action of conversion, citing that the burden that would
be placed on researchers to confirm consent before utilization of human body fluids
in research would be too great. Here again, the case focused on the ability of one to
define products of his body external to himself as his property.
Implantation of microchips concerns an internal property interest in the self
because placement of the device involves breaking the skin to place a foreign
object within the body permanently. It may be likened to the use of an artificial eye
or a pace-maker. However, in those cases, the implant is desired. In the case of the
microchip, there is only a convenient accounting system and repository for
government information. Thus, new questions such as whether or not property
rights can be extended to oneself now arise. If York could be used as a precedent, it
would then be possible to extend the right from a frozen embryo removed from the
body, to internal bodily organs. If embryos outside an individual's body are his or
her property, why then couldn't the embryos inside the body also be that
individual's property? From there the conclusion that anything within an individual's
body was the property of that individual, or that the body as a whole is property if
its components are, could be reached. York is somewhat different however, because
concerns and interests in reproductive freedom enter into disputes over fetuses,
embryos and contraception in general. York or Davis or other cases concerning
reproductive rights and technologies are therefore not the best models for the
microchip, but they are closest in substance. Additionally, the very closest legally
applicable statutory precedent is the Uniform Anatomical Gift Act. Unfortunately, as
previously stated, because this Act covers intrusions into self only after death, it is
not directly applicable either.
In the absence of close precedent, and in the face of emerging technology, it is
sometimes necessary to forge new legal concepts to cover the previously
unanticipated developments of science. The use of microchip implants in humans is
such an instance, wherein the application of novel legal theories is required,
because of the novelty and the direness of the implications for humans. The
concept of property should be extended to oneself as concerns internal matters to
prevent technology from swallowing up the individual. One important aspect of
property is the owner's right to exclude others from it. It follows that if an individual
can be said to have property rights in himself, he can exclude others from invading
his body which he controls as his property. Thereafter, if it is recognized that the
individual has that right to prevent intrusions into his own body under property law,
he can invoke Fourteenth Amendment protection to dissuade others or the
government from requiring the placement of foreign objects in his body or at
minimum provide adequate compensation.
Those principles can be analogized to the scenario of governmental mandate of
microchip implantation. If the government desires to mandate microchip
implantation, it must provide just compensation for those implanted. The question
would then become how to value this level of intrusion. Compensation required
would include money damages for the initial implantation, as well as carrying a
foreign substance, difficult calculations indeed. Even if an amount could be
calculated, it is unlikely that the government could give its value in cash because
the total amount required for compensation of all individuals would be prohibitively

15
high. If property interests were recognized in self, the compensation required by
each individual from the government to implant the chip in each individual would be
very great. There are aspects of the program that would effectively make it difficult
to uniformly mandate the implantation of the microchip. To overcome this obstacle,
the government might insist on some form of nonmonetary compensation. For
example, a tax break, an additional legal holiday or some other compensatory
program might be invoked which did not involve an actual exchange of money on
the part of the government. Property rights in self should be recognized in the case
of mandated microchip implantation. This would ensure that individuals receive
compensation for their inconvenience, though the government may provide
nonmonetary compensation which would be less satisfactory.

Legislation Required
Although microchip implantation might be introduced as a voluntary procedure,
in time, there will be pressure to make it mandatory. A national identification
system via microchip implants could be achieved in two stages. Upon introduction
as a voluntary system, the microchip implantation will appear to be palatable. After
there is a familiarity with the procedure and knowledge of its benefits, implantation
would be mandatory. To forestall this, legislative protection for individual rights
must be enacted. For example, a recent poll indicates that safeguards would
increase by 11% the number of people willing to accept health care identification
numbers.
Legislation which concerns and protects the implants where consent is given
might address two possible problems. First, laws should protect minors. Though a
child may be too young to give his own consent, the parents may be allowed to
make the decision. At some age, the child should be allowed to decide whether or
not he or she wants to keep the implant. Second, laws should allow a person who
has been implanted to remove a chip at will. These safeguards should insure that
once implanted, the microchip can be removed without further legal action. For
example, if the individual enters a contract with a service to store medical records
on a microchip, she should be able to end it. That is, a commercial institution should
not have the power to insist that the microchip remain, even if only for a short time.
Also commercial parties should not "own" the implant. Once it is in the individual, it
belongs to that individual and not the corporation providing the service. In this way,
the individual will be free, for example, to remove a chip or reinstall another. That
decision should rest solely with the person who has the implant.
To avoid a governmental mandate, citizens may advocate for an outright ban.
This drastic measure may also be necessary in a system that is initially voluntary,
for it may well be the precursor to a mandate. A voluntary program will lead to the
desensitization to the loss of legal rights. When the government subsequently
announces a mandate, it is conceivable that the public would agree by reason of
familiarity with the benefits obtained, without adequate consideration of the
implications. If at that point, many people have already chosen implantation and
reaped its benefits, then it is less likely that they will protest. Thus, an outright ban
may be the surest form of protection. Short of that, the best way of preventing
incipient problems is to protect rights before desensitization. All of these protections
against microchip implantation should be considered due to failure. If none of the
current protections is strong enough to prevent mandatory implantation, legislation
must be enacted to ease the very great intrusion into individual privacy. Minimally,
if the government is to initiate broad usage, it must provide assurances. Of utmost

16
importance would be a guarantee of the limited access of the information contained
on the microchip or within associated databases. It would be essential that
information access be severely limited. Such protections could be modeled after the
Consumer Credit Protection Act and the Privacy Acts. For example, individuals
should have the opportunity to review all records kept on or in connection with
microchips and be given the opportunity to correct them.

Ethics
Currently, there are no regulatory agencies or legislation that defines what
constitutes ethical use of RFID and no standard of practice to protect consumer
privacy. Using RFID without regulation requires serious considerations of the ethical
issues arising from the use of RFID. One issue is the RFID tags are open in nature
and once active RFID tags have traveled beyond the point of sale, the privacy of the
consumer is compromised. Anyone with a suitable RFID reader can query and
discover information and easily and visibly violate consumer privacy. This can be
done unobtrusively by merely walking past. It is unethical to invade consumer
privacy. Taking this a step further, currently there is no legislation governing
whether retailers disclose the fact that an item or packaging contains RFID tags.
Consumers may not want sensitive products, such as a pregnancy test to be RFID
tagged and traceable. In some cases, a credit card used to purchase the items can
be linked to a specific purchase. Ethics would require that companies make it known
to customers exactly what they are purchasing and how it may impact their privacy.
Since this disclosure is not enforced by the law, manufacturers may not disclose.
Another issue is the RFID tags are used to track humans without their consent.
Governments may track people using these tags to help with law enforcement. In
these cases, personal privacy is violated in the interest of law enforcement. The
question becomes whether this kind of violation of privacy is acceptable when using
RFID tags which appear ordinary or are invisible. At this point, it is not acceptable
and the public is strongly against being tagged and tracked without their knowledge
or consent. The ethical issues of RFID revolve around the issue of privacy. The core
concept of privacy is the notion of a boundary between the environment and an
individual. On one side of this boundary, the environment is considered public. The
other side is individual and very private. It is a human right to have the ability to
control this boundary that separates private from public. However, the most widely
used RFID tags do not provide security measures to restrict reading, nor can their
presence be easily detected. “Combined with the fact that they can be read
remotely and secretly, RFID tags allow any third party to cross the boundary that
separates the public and private aspects of an individual, thus violating their
privacy and stripping them of the power to control what is private.” 21
Ethics should aim at ensuring the respect for human rights and freedoms of
the individual, in particular the confidentiality of data. Caution is recommended as a
general ethical principle with regard to information and communication
technologies. This principle entails the moral duty of continuous risk assessment
with regard to the not fully foreseeable impact of new technologies as in the case of
RFID microchips in the human body. This assessment concerns particularly the
analysis of present and future situations in which the use of RFID microchips in the
human body may be considered as a potential risk, or even as a potential threat to
human dignity or to other ethical principles. It should be stressed that there are no

17
reliable scientific investigations concerning the long-term health impact of RFID
microchips in the human body.
There could be conflict between the personal freedom to use one’s economic
resources to get an implant that will enhance one’s physical and mental capabilities
and what society at large considers desirable or ethically acceptable. Another value
conflict concerns the potential conflict between limiting the freedom of people
dangerous to others by surveillance and promoting the safety of others. Freedom of
researchers may conflict with the obligation to safeguard the health of research
subjects. Concern for economic competitiveness and other economic values
(economic growth) may come into conflict with respect for human dignity. The
unrestricted freedom of some may endanger the health and safety of others.
Therefore a balance has to be struck between values that are all legitimate in our
culture.
As in other areas, the freedom to use RFID microchips in ones own body; the
principle of freedom itself might collide with potential negative social effects. In
these cases ethical counseling as well as social and political debate might be
necessary. The borderline between repairing and enhancing is not strict.
Legislation is necessary in order to avoid a situation in which society is becoming
more and more dependent on such intrusive technology in order to provide social
security while at the same time the technical perfection of such implants is helpful
for all kinds of medical purposes as well as for legitimate social applications. The
question of RFID microchips in the human body is thus located between two
extremes. On the one hand, the protection of the natural human body, that is to
say, the medical use of RFID microchips for health care, and, on the other hand, the
elimination of the human body as we know it today and its substitution by an
artificial one – with all possibilities in between. Human dignity concerns the human
self as an embodied self. Thus the question of autonomy and respect of the self
cannot be separated from the question of bodily care and of the possible changes
due to RFID microchips.

AMA Recommendations:
“The American Medical Association recommends that physicians disclose
uncertainties about the risks of implants, add extra layers of security to protect
patient privacy and support ongoing research regarding the implantation of RFID
devices in human beings.”22 The American Medical Association (AMA) has officially
established a code of ethics designed to protect patients receiving RFID implants.
The recommendations focus on safeguarding a patient’s privacy and health, and are
the result of an evaluation by the AMA’s Council on Ethical and Judicial Affairs (CEJA)
regarding medical and ethical implications of RFID chips in humans. A report
acknowledges that RFID’s use in health care represent another promising
development in information technology, but also raises important ethical, legal and
social issues. “The use of RFID labeling in humans for medical purposes may
improve patient safety, but also may pose some physical risks, compromise patient
privacy, or present other social hazards.”23 The informed consent process must
include disclosure of medical uncertainties associated with these devices;
physicians should strive to protect patients’ privacy by storing confidential
information only on RFID devices utilizing informational security similar to that
required for medical records; and physicians should support research into safety

18
and efficacy of RFID devices implanted in human beings, and examine the role of
doctors regarding the nonmedical uses of technology.
The recommendations serve as ethical guidelines for physicians and caregivers
and are officially part of the AMA’s medical ethics code. “While not law, the AMA’s
code of ethics has long served as a standard of conduct defining the essentials of
honorable physician behavior.”24 The AMA is the largest professional organization
representing the interest of physicians and patients in the U.S. and the AMA’s code
of ethics is the most widely accepted guidance for physicians’ professional, ethical
practices. In fact, courts and governments often use the AMA’s ethics codes as
guidelines”25There are indications that RFID implants may present physical risks to
patients because the devices can migrate under the skin and become difficult to
extract. Risks may be minimized by “constructing RFID tags from materials that
permit surrounding tissue to encase the device.”26Electromagnetic interference may
occur between the RFID implants and electrosurgical devices – medical tools that
use electrical currents for cauterization during surgery, and defibrillators. More
research must be done regarding whether RFID tags might also affect the efficacy
of pharmaceuticals. From a privacy perspective, the AMA notes that RFID device
security has not yet been fully established, so physicians cannot assure patients
that the personal information contained on the RFID tags will be appropriately
protected. Beyond just storing unique ID numbers on the tags, the association
suggests the medical community also consider computer encryption and digital
signatures to protect the data.

Many consumers have never heard of RFID technology. They are not aware of
the implications and risks to their rights to privacy. Consumers have a right to know
about the use of any RFID technology around them. When entering a commercial or
public environment consumers must be informed about the use and location of RFID
tags and readers, whether the products they buy have RFID chips embedded and
what the consequences are in terms of data gathering. Being armed with this
information alone, however, will not solve all concerns regarding privacy. The ANEC
and BEUC states, “We encourage impartial and comprehensive information
campaigns on the RFID technology, its potential benefits and risks, but also on data
protection and privacy rights in general, organized and financed by independent
public authorities.”27 They suggest that information campaigns consult consumer
organizations and civil societies and get their opinions. I think that labeling should
be mandated by law to inform consumers about the presence of RFID chips in
products that contain RFID and readers.

Impacts on Health and the Environment

It is expected that RFID technologies will significantly contribute to exposures to
Extremely-Low-Frequency (ELF) components. Little or no data is currently available
to assess the potential health hazards arising from the use of these technologies.
Moreover, as recently stated by the European Commission Scientific Committee on
Emerging and Newly Identified Health Risks (SCENHIR), ELF magnetic fields are
possibly carcinogenic, mostly based on occurrence of childhood leukemia.28

19
Regarding electromagnetic fields (EMF) exposure, evaluation is needed if specific
limits or extension to existing standards have to be added regarding on-body
antennas (highly localized fields) or the combination of different sources operating
at different frequencies or within different frequency bands. Because of these
concerns, new exposure assessment procedures for testing compliance with safety
guidelines are necessary. Further research is needed in order to assess potential
health risks of RFID technologies together with exposure assessment procedures.
The amount of copper, other heavy metals, silicon and adhesives used in RFID
chips cause important environmental concerns regarding the disposal and recycling
processes. It is necessary to promote sustainable, environment friendly RFID chips
and foster research on the way to include environmental concerns into the
technology. Measures should be developed, ranging from legal provisions to
standards, in order to ensure proper waste, recycling and energy usage
management of RFID tags. Rules should be set, assigning responsibility and
accountability for the disposal of the tags. RFID technology has the potential to be
used in anti-competitive ways, restricting consumer choice. For instance, a
manufacturer X would design software that exclusively works with their reader,
hospital equipment or parts of this same manufacturer X - those that will have RFID
chips embedded (tie-in products). The usage of RFID in applications that control the
use of products or force consumers to buy products that are more costly would
restrict consumer choice, and consequently impact competition. Similarly, RFID
technology must not prevent the use of compatible, alternative RFID supplies,
reader, hospital equipment and those not produced by the original manufacturer, by
means of authenticity certificates. The government needs to start investigating,
addressing and controlling the risks to competition and market fragmentation issues
raised by RFID applications. It must use anti-competition laws to prevent and, when
applicable, sanction such abuses.
Technology could play a role in protecting intellectual and industrial property
rights as well as ensuring consumer safety. We are skeptical about the use of RFID
technology as a means to avoid theft and counterfeited products, like drugs. In fact,
the very technology that is used to protect these products can be forged, due to the
very low or non-existent level of security of the tags used. In addition, the use of
RFID technology on sensitive products such as drugs also raises serious privacy
concerns. Other technologies, with lower privacy implications could be exploited.
For instance, as reported in the Bridge report, the pharmaceuticals industry is
supporting 2D barcode instead of RFID as the preferred identification technology.29

Right to Choose
Consumers must have the choice to decide whether they want the RFID chip
and whether they want their data to be collected. Consumers should be allowed to
opt-in or to ask for RFID chips to remain on. Exercising this choice should not result
in any extra cost, damage or defect to a product or in any discrimination against the
consumer who wishes to return an item. The destruction of a RFID tag may not be
the best option. However, if consumers wish tags to be turned off, this option should
remain available. The removal of a chip could be a more appropriate solution. Yet, it
can be problematic where chips are too small or not easily removable due to the
specificities of a package or a product. Deactivation is an appropriate solution in
many cases. Tags should be automatically disabled at the point of sale, unless the

20
consumer expressly agrees to opt-in. RFID tags should be on a ‘read only mode,
rendering them impossible to be embedded with a consumer’s details into a RFID
tag without written consent. Ultimately, such use of RFID requires the sacrifice of
the freedom to privacy for security. “The problem is not in its capabilities but in its
utilization and potential for abuse. A powerful technology is worthless when it
requires the sacrifice of a fundamental human right, the right to privacy.”30

Key Recommendations
The existing legal framework that addresses the privacy and security risks that
the applications of RFID and NFC technologies present for consumers in different
contexts and sectors should be assessed. A clear distinction between non-personal
and personal data in the context of RFID technology is necessary. As data collection
and processing are increasingly becoming the norm, rather than the exception,
guidelines regarding consent is required. We need to establish principles on RFID
usage, self-regulation and best practices. Enforceable guidelines, co-regulation and
soft-law in general could have a role to play but are not enough as these
instruments rarely provide for more consumer protection than existing binding
rules. There is a lack of quality of codes of conduct regarding the protection of
personal data. Perhaps industry self-regulation instead of traditional legislative
instruments to address the critical issues raised by RFID, such as privacy protection,
is a better policy option. A code of conduct may provide more flexible and rapid
solutions in comparison to traditional law-making, such “soft law” measures would
only be acceptable if fully respecting the minimum regulatory criteria of the Lund
declaration.31
The desire to see RFID technology deployed and to keep the costs down, has so
far put aside any serious consideration of security and privacy. Most existing tags
have limited memory capacity and work without sophisticated data encryption
techniques. However, consumers' responses to RFID technology will be crucial to its
future. If the industry does not ensure proper privacy and security, consumers will
lose confidence in RFID technology. Several technical and regulatory solutions must
be developed. Some technologies would be short range frequencies, encryption,
and authentication. Privacy and security must be built into the RFID information
systems before their widespread usage. In instances where a security breach has
occurred, where data has been copied or altered by an unauthorized third party, the
consumer must be personally informed and appropriate steps taken to rectify the
situation. Additionally, if a consumer consequently suffers damage, the company
responsible should be held liable and should compensate the consumer. The burden
of proof and the responsibility to produce relevant documentation should be held by
the professionals.
This could be done by developing privacy and security impact assessments to
help developers and operators spot risks and build protection when designing new
RFID products and systems. Consumers’ concerns should be taken into account in
the design phase in order successfully introduce RFID technology. Privacy and
security safeguards are critical at all levels of the system to include the microchip,
reader, database, and backend systems before further deployment of the
technology. Liability for damages caused to consumers by insufficient protected
RFID systems should exist. Governance is required. “RFID still has major technical
vulnerabilities. For instance, governments around the world are adding RFID tags to

21
identification documents to avoid forgery. However, it has not proven very efficient
so far: the Belgian, Dutch, German and American e-passports have already been
cracked by hackers and the content of the RFID tag copied.32

Conclusion

There are serious and uncertain risk that, currently apply to the implanting RFID
microchips in the human body. We need to distinguish between active and passive
implants, reversible and irreversible implants, and between offline and online
implants. We also need to make a distinction between medical and non-medical
applications and medical applications should also be evaluated. There should be
special caution and disclosure for RFID microchips that cannot be removed easily;
RFID microchips that influence, determine or change psychic functions; RFID
microchips that due to their network capability could be misused in several ways for
all kinds of social surveillance and manipulation; RFID microchips influencing the
nervous system and the brain and thus human identity. A distinction between
therapeutic applications and enhancements should be made clear. Intrusive
technology that by-passes normal sensory experience and implants that will
influence future generations should be carefully considered.
More research on the long term social, cultural and health impact of different
types of RFID microchips should be conducted with particular focus on risk
characterization, assessment, management and communication. Particularly, RFID
microchips being used as a basis for cyber-racism, changing the identity, memory,
self perception and perception of others, to enhance capabilities in order to
dominate others and for coercion towards others who do not use such devices
should be banned or and declared illegal. Many actual or potential RFID microchips
in the human body are legally inadmissible, subject to the specific consideration of
exceptional situations and the implantation of microchips for health purposes
should be governed by the principles that the objective is important, and saves
lives, restores health or improves the quality of life; the implant is necessary and
there is no other less invasive and more cost-effective method. There should be fair
access to RFID microchips for health purposes. This means that such access should
be based on health care needs rather than on economic resources or social position.
Three categories of rights are relevant to implanting microchips in humans:
common law, constitutional and property. The common law concept of bodily
integrity precludes nonconsensual implantation. When microchips constitute a legal
search, the Fourth Amendment applies to preclude the government from using
devices with read-write and tracking capabilities, but a warrant could legitimize
scanning a read only or read-write device. Property rights might be applied to
prevent intrusion without just compensation. This would require expanding current
law and applications of laws.
The closest parallels and strongest protection are afforded by common law right
of bodily integrity. Though cases have generally concerned death or birth issues, in
contrast with permanent insertion of a foreign substance into the body, the
analogies are much stronger than in two other branches of the law discussed.
Concerning constitutional rights, the strongest protection is only against the most
complicated device, the one with read-write and tracking capabilities. It is much
more likely that the read only or read-write implant would be initially used. The

22
common law right of bodily integrity is most convincing, especially where law-
abiding citizens are forced to undergo implantation. If only criminals must be
implanted, as opposed to the population at large, it will be more difficult to argue
against implantation in the face of the increased latitude of governmental control
over law-breakers. Beginning with voluntary introduction, Americans may be lulled
into accepting them. The time to prevent grievous intrusion into personal privacy by
enacting appropriate legislative safeguards is now, rather than when it is too late.
The Federal government needs to get involved immediately and create laws that
govern the use of the RFID device. Whether implants are currently voluntary or
mandatory at a later period in time, laws need to be instituted. I am torn between
using RFID chips in criminals for protection, even though it is a violation of privacy
(the criminal violated the law and in some instances committed murder) and using
the chips for health reasons in the way we protect infants, people with serious
health risk and the elderly. However, my religious morals sway me in another
direction. I do see the wonderful benefits the RFID implant would have for carrying
medical information and health records. Time saved doing paper work or inputting
data could be time used to treat medical emergencies and other conditions. This
technology would take healthcare and interoperability to another level. An
implanted microchip could be scanned for patient identification, a patient could be
checked into the hospital or their doctor’s appointment stress free, with minimal
wait time. All medical conditions and medication history could be accessed with a
quick scan. X-rays could be sent and all other information could be shared with
other clinicians, dentists and other specialist. Prescriptions could be filled. A patient
could even pay with a scan, since financial information (reduced billing cycle) could
be available in the same way. Maybe there would be less personal assaults with
intent to commit robberies (no need to carry money). Of course the scan
information could easily be shared on computers, at nurses’ stations and the
bedside machines, diabetes pumps……the possibilities are endless. Patient
centered information systems can be connected to administrative information
systems, clinical information systems, radiology information systems, laboratory
information systems, pharmacy information systems, telemedicine, clinical decision
support systems and hospital information systems. At some point, I believe that the
laws will change to re-define the meaning of privacy and RFID chips will be
mandatory, for health reasons and the greater good.

23
24
1 Ramesh, Elaine M. “Time Enough? Consequences of Human Microchip Implantation” Accessed
October 30, 2009 at http://www.piercelaw.edu/risk/vol8/fall/ramesh.htm#fn1

2 Murray, Charles J. “Injectable Chip Opens Door to ‘Human Bar Code’.” Accessed October 30,
2009 at http://www.rense.com/general18/injectable.htm.

3 Murray, Charles J. “Injectable Chip Opens Door to ‘Human Bar Code’.” Accessed October 30,
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4 Murray, Charles J. “Injectable Chip Opens Door to ‘Human Bar Code’.” Accessed October 30,
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5 Ramesh, Elaine M. “Time Enough? Consequences of Human Microchip Implantation” Accessed

October 30, 2009 at http://www.piercelaw.edu/risk/vol8/fall/ramesh.htm#fn1

6 “Ethical Aspects of ICT Implants in the Human Body,” Accessed October 30, 2009 at
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7 “Ethical Aspects of ICT Implants in the Human Body,” Accessed October 30, 2009 at
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8 ANEC and BEUC: Consumers’ Scenarios for a RFID Policy, Accessed October 30, 2009 at
http://www.anec.org/attachments/ANEC-ICT-2007-G-059.pdf

9 ANEC and BEUC: Consumers’ Scenarios for a RFID Policy, Accessed October 30, 2009 at
http://www.anec.org/attachments/ANEC-ICT-2007-G-059.pdf

10 “Ethical Aspects of ICT Implants in the Human Body,” Accessed October 30, 2009 at
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11 “Ethical Aspects of ICT Implants in the Human Body,” Accessed October 30, 2009 at
http://ec.europa.eu/european_group_ethics/docs/avis20_en.pdf

12 “Ethical Aspects of ICT Implants in the Human Body,” Accessed October 30, 2009 at
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13 “Ethical Aspects of ICT Implants in the Human Body,” Accessed October 30, 2009 at
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14 “Ethical Aspects of ICT Implants in the Human Body,” Accessed October 30, 2009 at
http://ec.europa.eu/european_group_ethics/docs/avis20_en.pdf

15 Ramesh, Elaine M. “Time Enough? Consequences of Human Microchip Implantation” Accessed

October 30, 2009 at http://www.piercelaw.edu/risk/vol8/fall/ramesh.htm#fn1

16 Ramesh, Elaine M. “Time Enough? Consequences of Human Microchip Implantation” Accessed

October 30, 2009 at http://www.piercelaw.edu/risk/vol8/fall/ramesh.htm#fn1

17 Ramesh, Elaine M. “Time Enough? Consequences of Human Microchip Implantation” Accessed

October 30, 2009 at http://www.piercelaw.edu/risk/vol8/fall/ramesh.htm#fn1
18 Ramesh, Elaine M. “Time Enough? Consequences of Human Microchip Implantation” Accessed
October 30, 2009 at http://www.piercelaw.edu/risk/vol8/fall/ramesh.htm#fn1

19 Ramesh, Elaine M. “Time Enough? Consequences of Human Microchip Implantation” Accessed

October 30, 2009 at http://www.piercelaw.edu/risk/vol8/fall/ramesh.htm#fn1

20 Ramesh, Elaine M. “Time Enough? Consequences of Human Microchip Implantation” Accessed

October 30, 2009 at http://www.piercelaw.edu/risk/vol8/fall/ramesh.htm#fn1

21 Bian, Shu Ning. “Implantable RFID Chips”

22 Bachelor, Beth. “AMA Issues Ethics Code for RFID Chip Implants.” Accessed October 30, 2009 at
http://www.rfidjournal.com/article/print/3487.

23 Bachelor, Beth. “AMA Issues Ethics Code for RFID Chip Implants.” Accessed October 30, 2009 at
http://www.rfidjournal.com/article/print/3487.

24 Bachelor, Beth. “AMA Issues Ethics Code for RFID Chip Implants.” Accessed October 30, 2009 at
http://www.rfidjournal.com/article/print/3487.

25 Bachelor, Beth. “AMA Issues Ethics Code for RFID Chip Implants.” Accessed October 30, 2009 at
http://www.rfidjournal.com/article/print/3487.

26 Bachelor, Beth. “AMA Issues Ethics Code for RFID Chip Implants.” Accessed October 30, 2009 at
http://www.rfidjournal.com/article/print/3487.

27 ANEC and BEUC: Consumers’ Scenarios for a RFID Policy, Accessed October 30, 2009 at
http://www.anec.org/attachments/ANEC-ICT-2007-G-059.pdf

28 ANEC and BEUC: Consumers’ Scenarios for a RFID Policy, Accessed October 30, 2009 at
http://www.anec.org/attachments/ANEC-ICT-2007-G-059.pdf

29 ANEC and BEUC: Consumers’ Scenarios for a RFID Policy, Accessed October 30, 2009 at
http://www.anec.org/attachments/ANEC-ICT-2007-G-059.pdf

Sieberg, Daniel. “Is RFID Tracking You?” Accessed October 30, 2009 at
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30 Bian, Shu Ning. “Implantable RFID Chips”

31 ANEC and BEUC: Consumers’ Scenarios for a RFID Policy, Accessed October 30, 2009 at
http://www.anec.org/attachments/ANEC-ICT-2007-G-059.pdf

32 ANEC and BEUC: Consumers’ Scenarios for a RFID Policy, Accessed October 30, 2009 at
http://www.anec.org/attachments/ANEC-ICT-2007-G-059.pdf

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