| XXIV. | Human Microchip Implants: Legal Considerations |
| Posted: February 9, 2004 |
| A. | Preemptive Legislative Safeguards Considered: Franklin Pierce Law Center Risk article: 1997 |
| 1. | Attorney Elaine M. Ramesh, in an article entitled, "Time Enough? Consequences of Human Microchip Implantation," presents the position that, "the legal ramifications" of human microchip implantation "need to be explored now." |
| Ramesh writes in the Introduction: |
| [QUOTE] | If the technology were extended to humans, a myriad of identification-related applications could be envisaged such as the capability to find lost children or confused Alzheimer's patients, or to determine if job applicants are illegal immigrants or criminals. By encoding the microchip only with a single number, it might also carry, e.g., medical or criminal history. Also, devices can be used for tracking. |
| Although each such application has utility, privacy implications are ominous. The level of intrusion[3] necessitated by implantation may be objectionable, for there are many legal rights which would be impinged upon. It is plausible that, since the technology has not yet been perfected, there is no need to address the incipient legal problems until devices are used.[4] However, because of the very drastic reductions in personal liberty and privacy that such implantation represents, the legal ramifications need to be explored now. The reasons that a mandatory program of implantation for all citizens must be necessary for an identification program to be effective will be explored.[5] A system using the technology, once in place, may be difficult to dislodge despite limitations of individual freedoms because its advantages will be extremely attractive. The positive applications may be said to outweigh the detrimental legal consequences at that time. Therefore it is not too soon to consider the repercussions that mandatory microchip implantation would have, as a pre-emptive measure.[6] |
| The first part will explore the technology and discuss possible applications for microchip implantation into humans. The second will discuss common law, constitutional, and property rights affected by mandatory implantation. Last, we consider protections that can be effectuated if the technology is used.394[UNQUOTE] |
| 2. | Also in the second footnote of the article within the Introduction, Ramesh, after referencing Alan F. Westin's 1967 Privacy and Freedom and the "Book of Revelation in the Bible" states, "That mark could well be the microchip implant."395 |
| 3. | The Summary and Conclusion section of the article points to the value of the enactment of "appropriate legislative safeguards...now, rather than when it is too late." |
| Ramesh writes: |
| [QUOTE] | Although use of such a device at first appears farfetched, examination of the existing technology and the potential utility proves that microchip implantation is both possible and, for some purposes, desirable. Beginning with voluntary introduction, Americans may be lulled into accepting them. This article thus sounds a warning bell. The time to prevent grievous intrusion into personal privacy by enacting appropriate legislative safeguards is now, rather than when it is too late.396[UNQUOTE] |
| B. | Value of Legal Protections Discussed re Likely Chipification of Humans: salon.com |
| In a salon.com Web site article by Katharine Mieszkowski, Academic Chris Hables Gray discusses the likelihood of the "chipification" of humans. |
| [QUOTE] | Others see the chipification of humans as all but inevitable. Chris Hables Gray, professor, self-proclaimed "cyborgologist" and author of the forthcoming book "Cyborg Citizen," says that it really doesn't matter whether or not the "Digital Angel" flies in October. "If this company doesn't do it, someone else will," he says. And watch out when they do. |
| "They will start implanting them in prisoners, parolees, child abusers, sex offenders and drunk drivers," he predicts. Gray says that it's been a military project for some 20 years to find a way to track every soldier on the battlefield ... |
| No matter how creepy we find the prospect of such a technology, we can't stop its creation -- nor would we necessarily want to. "Technology is continually trumping the constitutional guarantees that we have," says Gray. He'd like to see protections against the misuse of such chips as they become commercially available: "Citizens could ask for a law that made it a crime to put these into a person without their permission, and to forbid, under any conditions, for the government to put these into prisoners, parolees, illegal aliens, soldiers, citizens"..."397[UNQUOTE] |
| C. | FindLaw Forum: CNN.com/LawCenter: Legal Questions re Human Chip Implants |
| A "Special to CNN.com" article entitled "FindLaw Forum: What legal questions are the new chip implants for humans likely to raise?" was authored by FindLaw Columnist Julie Hilden, who "is currently a freelance writer and practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99." An "About the Company" section of the FindLaw Web site states, "FindLaw is the highest-trafficked legal Web site, providing the most comprehensive set of legal resources on the Internet for legal professionals, businesses, students and individuals."398 Hilden addresses the following points. |
| 1. | Overview of Legal Questions |
| In an introductory section of the article, Hilden raises a number of questions: |
| [QUOTE] | After Verichip, the company's next product will be Digital Angel, which resembles a pager and uses tracking similar to the Global Positioning System (GPS) to follow people's movements. Digital Angel is already being used in a pilot program to track Los Angeles parolees. |
| It is also likely that GPS chips for implantation in humans will also be available in the near future. And inevitably, Verichip or other companies' similar products are likely to be used to encode not only medically important information, but other information as well. |
| Based on these developments, one can easily see how, quite soon, future developments relating to the use of information chips, GPS pagers, and even GPS chips are likely to raise very serious legal questions. |
| Among the questions are: Could the government mandate chips like these -- containing information, GPS systems, or both -- for all citizens (or all legal aliens), or does the law require that we always have a right to reject them? What about classes of citizens, such as government employees, who have traditionally been allowed to contract away their rights? And what about ex-felons, who have been thought to have forfeited many of their rights as citizens by virtue of their prior conduct? Finally, is there any way that, conversely, the chips might actually enhance our civil rights and civil liberties?399[UNQUOTE] |
| 2. | Legislation Needed |
| Hilden states that present law is insufficient to address the potential for abuse presented by GPS microchips implanted in humans. |
| [QUOTE] | Answering these questions, as I will try to do below, shows that the chips will have a huge potential for abuse, even if they are used within current legal limits. Without legislation on this topic, the background law -- including even constitutional law -- will not be sufficient to maintain the privacy and freedom that we so value.400[UNQUOTE] |
| 3. | Citizens Could Not Be Required to Be Implanted with a GPS Chip |
| Hilden asserts that the government could not require citizens to be implanted with a GPS chip. |
| [QUOTE] | It is important to stress that the government could never simply require every citizen to be implanted with a chip containing a GPS system, information (medical or otherwise), or both. To a virtual certainty, the Supreme Court would unanimously hold such a law to be unconstitutional, as a violation of the Fourth Amendment -- and probably of other Amendments as well. This would probably also be the case, especially based on more recent Court precedents, with respect to legal aliens as well.401[UNQUOTE] |
| 4. | Government Employees Face More Mixed and Conflicted Legal Precedents Regarding GPS Chip Implantation |
| Hilden asserts that the government may be able to require government employees to be implanted with a GPS chip. |
| [QUOTE] | However, what if the person the government would like to chip is a government employee? In that event, the situation could be much more complex, and the legal precedents far more mixed and conflicted. |
| Consider that government employees, the Supreme Court has held, can be forced to give up their First Amendment rights by contract, as a condition of working for the government. Would the Court hold, similarly, that government employees, as a term in their contracts, can be required to be chipped, and thus to give up their Fourth Amendment rights? |
| That remains to be seen -- and I would not be confident, especially in the current climate, that the Court would strike down a law broadly mandating "chip contracts" for high-security government employees. For example, spies within our government who might become counter-spies for foreign governments would be easier to follow and catch if they were forced to be chipped with GPS. |
| When the chips are so useful, for purposes like these, and employees "voluntarily" contract to have them implanted, would the Court really stand in the way?402[UNQUOTE] |
| 5. | Ex-felons May Be Legally Forced to Be Chipped |
| Hilden asserts that, "the situation of ex-felons...is even more precarious that that of government employees." |
| [QUOTE] | Meanwhile, the situation of ex-felons, whose rights are already constricted, is even more precarious that that of government employees who may have to lose their jobs if they resist being chipped. Ex-felons can already be stripped of the right to vote, the most basic right in a democracy. They also can be placed under stringent probation conditions (including house arrest), and sometimes are even required to wear an ankle bracelet for monitoring purposes... |
| Considering that Digital Angel is already being used in Los Angeles in a pilot program for parolees, as mentioned above, can either informational or GPS system chips be far behind?403[UNQUOTE] |
| 6. | Benefits Noted by Author of FindLaw's CNN Article |
| Hilden states that a number of benefits may accrue to implanting humans with microchips. |
| [QUOTE] | Yet a close examination not only of chips' harms, but also of their virtues, shows that we should keep an open mind as to their potential benefits, especially in the area of law enforcement and personal liberty. In some ways, chips might make us less free, but in other ways, more... |
| Meanwhile, if GPS chips could be imbedded so deeply as to be very hard to remove, they could make recidivist suspects' flight futile, and leave many fewer cases for America's Most Wanted to solve. |
| Furthermore, GPS and information chips also may ultimately be an alternative to incarceration, house arrest, or ankle bracelets. Potentially cheaper than prison, they may be a way to stem the expansion of prisons and prison budgets that has plagued us... |
| On the one hand, systems like Digital Angel or a future human GPS chip offer liberty only at the price of an incursion on privacy. But on the other hand, they do promise somewhat more liberty for prisoners by holding out the hope of earlier and more frequent release... |
| In setting forth our fears about chipping humans, we should not forget the possibilities chips can offer of improving our lives -- not only by improving the quality of medical services we can expect, but also by expanding the freedom with which we can live.404[UNQUOTE] |