Chipping Employees: The “Wave” of the Future?

 
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A key cinematic meme over the past 25 years is an electronic device implanted under your skin that tracks your movements, provides you access to restricted areas, or connects you to a larger virtual community. Think Arnold Schwarzenegger in "Total Recall" (1990), Will Smith in "Enemy of the State" (1998), or Keanu Reeves in "The Matrix" (1999). And while film will teach you that such devices are most often used for sinister purposes, employers are looking to these devices for more helpful reasons, with mixed reactions.

The most recent application by employers is by Three Square Market, a technology company in Wisconsin. According to the New York Times, Three Square recently offered to implant a microchip under its employees' skin that will give them access to the building and the ability to pay for food in the cafeteria, all with the wave of a hand. And despite some initial misgivings, more than 50 out of 80 employees at Three Square's headquarters have volunteered.

The technology is called Radio Frequency Identification, or RFID, and it is nothing new. The technology has been around since World War II, and it has been used in everything from parking permits to tracking newborns in hospital nurseries.[1] Implants were approved for living creatures in the 1990s,[2] and now "microchipping" pets has become widely adopted.[3]

The big breakthrough, however, came in 2004, when the Food and Drug Administration approved the use of subdermal RFID implants in humans.[4] Since then, in 2006, an Ohio surveillance company, CityWatcher.com, announced that it had implanted RFID chips in some of its employees (with permission), allowing them to pass a detector and enter their facility.[5] Then, in 2007, the American Medical Association endorsed responsible use of implantable RFID for patient identification, and thousands across the globe have since undergone the process for various reasons.[6]

Needless to say, the applications of this technology are only limited by our imagination. But with the advent of such invasive technology comes concerns about privacy and health. Critics of implanted RFID chips note that they have the potential to monitor all of a person's daily activities, making any sense of privacy or anonymity a thing of the past.[7] Others argue that the invasive nature of technologies with expansive surveillance capabilities can adversely affect employee morale, leading to greater stress in the workforce and decreased worker productivity.[8] Finally, some studies have shown a link between malignant tumors in animals with microchips, raising questions whether implants are safe for humans.[9]

And, as is often the case, the law lags behind the technology, and the ubiquity of its potential application outpaces our cultural appreciation of its impact. As of this writing, only five states (including Wisconsin, home to Three Square) have passed statutes banning the mandatory implant of RFID devices.

  • Cal. Civ. Code §52.7 (West 2008) (prohibiting any person from requiring, coercing, or compelling any other individual to undergo the subcutaneous implanting of an identification device);
  • Mo. Rev. Stat. §285.035 (2008) (prohibiting employers from requiring an employee to have a personal identification microchip technology implanted for any reason);
  • N.D. Cent. Code §12.1-15-06 (2008) (prohibiting a person from requiring that an individual have inserted into that individual's body a microchip containing a radio frequency identification device);
  • Wis. Stat. §146.25 (2008) (prohibiting a person from requiring an individual to undergo the implanting of a microchip);
  • Okla. Stat. §63-1-1430 (2008) (No person, state, county, or local governmental entity or corporate entity may require an individual to undergo the implanting of a microchip or permanent mark of any kind or nature upon the individual.) [10]

None of these statutes, however, prohibit voluntary chipping, and when the alternative is being required to carry a key card or other badge you might lose, many employees (such as those at Three Square) are signing up.

Some researchers predict RFID will become the most pervasive computer technology in history.[11] But at the end of the day, with the exception of the devices being right under your skin, how different is this type of tracking from what is already occurring with your smart phone? And let's face it, for most of us, our smartphones might as well be surgically implanted.

[1] Lara M. Ulatowski, Recent Developments in RFID Technology: Weighing Utility Against Potential Privacy Concerns, 3 I/S: J.L. & Poly. for Info. Soc'y 623 (2008).

[2] Isaac v. Rosenberg, Involuntary Endogenous RFID Compliance Monitoring as a Condition of Supervised Release- Chips Ahoy?, 10 Yale L. J. 331 (2008).

[3] Ulatowski at 1.

[4] Rosenberg at 331.

[5] 13A N.Y. Prac. Employment Law in New York § 6:39 (2d. ed) (citing Richard Waters, US Group Implants Tags in Workers, Financial Times, February 12, 2006)

[6] Rosenberg, at 331.

[7] Ulatowski at 1.

[8] William A. Herbert, The Impact of Emerging Technologies in the Workplace: Who's Watching the Man (Who's Watching Me)?, 25 Hofstra Lab. & Emp. LJ. 355, 356 (Spring 2008).

[9] Ulatowski, at 8.

[10] See also http://www.ncsl.org/research/telecommunications-and-information-technology/radio-frequency-identification-rfid-privacy-laws.aspx

[11] Rosenberg at 331.

 
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