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States regulate use of microchips as tracking device

A Georgia legislative committee recommended in February that the state ban employers from implanting microchips in their workers' arms to track their whereabouts, according to the Atlanta Journal-Constitution. You'd think it might go without saying that such conduct would be a no-no for employers. Yet Georgia is not the first state seeking to get in front of the issue, fearing potential abuse of the rapidly emerging technology.

States attempt to get ahead of the issue. Georgia's House Study Committee on Biological Privacy, which was created to look at ways to protect "biometric" information, issued the recommendation to ban implanting microchips on February 6, along with its findings. The microchip ban is one of several actions proposed in the individual privacy realm, but this threat seems the most ominous. However, "[the legislative proposal] is not a provocative thing we cooked up," said State Rep. Ed Setzler (R), who chairs the committee, as quoted in the AJC. "It actually has been done in another state."

Indeed it has. Last May, Wisconsin Governor Jim Doyle signed 2005 Wisconsin Act 482 into law. The statute prohibits the required implanting of microchips in humans, and violations carry a $10,000 fine per day. While that state's Legislative Reference Bureau noted it was the "first law of its kind in the nation," at least 17 additional states are considering such measures, including Michigan, Oklahoma and North Dakota. A pending New Jersey bill provides that individuals could not be coerced into being implanted with such devices, would require written informed consent before implantation, and would require that those implanted with chips could remove the devices at any time.

According to Dale L. Deitchler, shareholder in the Minneapolis office of Littler Mendelson, P.C., Florida legislators have also addressed the issue, proposing standards applicable for bail bond employees relating to Radio Frequency Identification Devices (RFID). He says, however, that the legislation is designed more from a technical/security perspective than as employee protection legislation. The Florida legislation has not passed.

Deitchler also pointed out Rhode Island legislation, proposed in 2005, that would have restricted RFIDs for public employees, and, according to Deitchler, in late 2006 New York legislators proposed an RFID task force that would evaluate, among other things, use of RFIDs by employers. “At the federal level, a senate bill was introduced in July 2006 that would have banned involuntary implantation of microchips by private companies or the government,” said Deitchler, who continued, “none of this legislation has passed.”

In January, Colorado State Rep Mary Hodge introduced House Bill 1082, which would make it a misdemeanor in the state to "microchip" people to track workers' movements or for other unsavory purposes, the Rocky Mountain News reported. The measure has since been put on hold for further research—and after considerable ridicule in the statehouse.

“Of course employers interested in microchipping employees in all states need to be concerned with a whole range of issues relating to the common law of privacy (and diminishing or extinguishing expectations of privacy), occupational safety and health concerns and labor law bargaining requirements, to name just a few,” said Deitchler.

Microchipping employees may not be least intrusive means. Is this a solution without a problem? Is the ridicule justified? After all, microchips—“RFIDs," or radio frequency identification devices, which the FDA cleared for human use for medical purposes in 2004—are already used to ensure "wander prevention" of long-term care residents, to protect infants in hospital maternity wards, even to locate missing pets. Some healthcare practitioners praise the use of such devices as a revolutionary and potentially life-saving means of quickly accessing patient health information.

The information emitted from a microchip is a mere number or code which is recognizable by the receiving database, but has no meaning without being cross-referenced against information in that database. Therefore, the information emitted by an RFID chip would not be usable to someone who intercepted that information. On the other hand, the slippery slope is here in sharp relief. Columbian President Alvaro Uribe suggested Columbian seasonal workers should have microchips implanted before being allowed to enter the United States, according to U.S. Senator Arlen Specter (R-Pa). Such a proposal begs the question: does this seem benign?

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