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Implanting Dignity: Considering the Use of RFID for Tracking Human Beings

posted by:Angela Long // 11:59 PM // March 27, 2007 // ID TRAIL MIX

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* This piece is a summary of the arguments contained in a longer paper that is currently a work-in-progress.

Debate is currently raging over the use of radio frequency identification devices (RFIDs) as a method of identification of unique entities. However, this debate has centered upon the general privacy concerns raised by the use of RFIDs. [1] While the privacy implications of RFID use are important, equally important are the unique implications of RFID related to human dignity. Concerns related to human dignity are especially relevant now, as implantable RFIDs have now been approved for medical use in the United States. [2] The VeriChip, an implantable RFID manufactured by Applied Digital Solutions, is being marketed to hospitals and doctors as a method of quickly identifying unconscious patients in the emergency room setting. They have also been used for and proposed for a variety of non-medical purposes, such as the tracking of English football players and migrant workers in the US. [3] In the non-implantable context, RFIDs are currently being used to monitor patient compliance in pharmaceutical trials, ie. to ensure that patients are taking their drugs properly. [4] This could easily be implemented in cases where patients with mental illnesses are subject to a community treatment order in order to ensure that drugs are being taken.

It seems likely, then, that the potential uses for implantable RFIDs will only increase in the future. Indeed, as the examples above illustrate, it appears that the use of RFIDs, both external and implantable, could shift from a voluntary and consensual model of use, to one that is neither voluntary nor consensual, which is of considerable concern to those concerned not only about privacy, but about ethics more generally. It is thus imperative to examine the ethical concerns; concerns about how we treat other human beings; surrounding the use of implantable RFIDs in more detail.

Many of the same privacy arguments made in the context of non-implantable RFIDs apply equally to implantable RFIDs. However, there is an additional factor within implantable RFIDs that raises our moral antennae; something more than just the typical informational privacy and anonymity concerns articulated by those writing on RFIDs generally; something that is unique to RFIDs that are implanted in human beings or otherwise used to track the actions and movements of human beings that has not yet been accounted for in the existing literature. [5] This additional factor in the implantable RFID context has been casually described as a concern for ‘human dignity’ in the popular media. Thomas C. Greene articulates it like this:

Unique RF identity chips and concealed RF readers everywhere: madmen have been complaining about this since the earliest days of radio. That’s how we knew they were madmen. Only an IT industry divorced from any sense of good taste and human dignity, in which technology becomes an end in itself, could strive to make the nightmares of the insane a common reality. And yet, here we are. [6]

And, as stated by Cédric Laurant, Policy Counsel at the Electronic Privacy Information Center:

Monitoring children with RFID tags is a very bad idea. It treats children like livestock or shipment pallets, thereby breaching their right to dignity and privacy they have as human beings. [7]

While this concern for ‘human dignity’ has been raised, it has not been explored in any philosophical or legal depth within the academic literature. As such, it remains, to some, mere rhetoric. Such an exploration, however, is necessary in order properly articulate the concerns that have been raised by these writers. It is also important to look at how such an analysis relates to, or even encompasses, our concerns about privacy and anonymity in the implantable RFID context, allowing for a new discourse on the myriad of concerns surrounding RFIDs that track the movements and actions of human beings. Such a discourse is important in the legal context, as human dignity, unlike privacy, has been continually recognized one of the underlying principles of the Canadian legal system, as enshrined by the Charter of Rights and Freedoms. By viewing the tracking of human activity through RFIDs as an infringement of human dignity, an argument against the legality of the use of RFIDs in these ways could be greatly bolstered through the infusion of one of the most fundamental values enshrined in Canadian law, and thus any legal argument against their use could be viewed as much stronger and likely more effective.

Human dignity is a concept that has longstanding meaning both within philosophy and within the law, most notably as the basis for modern human rights law, although it is not a particularly well-defined concept, as it often has very different meanings in different contexts. [8] Most recently, the concept of human dignity has received renewed attention in the field of bioethics, with experts striving to get to the root of the concept and to determine how it is being used by law and policy makers and to determine the ‘correct’ conception of the term. The most widely accepted theory of human dignity is that based on Kantian deontological philosophy, where it is viewed as the “essence of humanity” [9] that provides each human being with intrinsic worth by virtue of possessing a certain quality or qualities (usually agency or autonomy). Based upon possession of this quality, this intrinsic worth, all human beings are to be accorded respect and are to be treated as ends in themselves and not merely as a means to an end. However, the use of both implantable and external RFIDs to track the actions and movements of human beings clearly betray this imperative in using human beings to achieve ends unrelated to the well-being of the subject her/himself, ends that are usually related to the accumulation of information; information which may in fact be used against the person about whom it is collected.

Given that Canadian law aims to protect people from violations of their human dignity, at the very least from intrusion by the state under the Charter, any attempt by the state to use RFID in a non-consensual and non-voluntary manner may indeed be considered contrary to Canadian legal values and could run the risk of being declared of no force and effect under s. 52(1) of the Charter.

[1] See e.g. Katherine Albrecht & Liz McIntyre, Spychips: How Major Corporations and Government Plan to Track Your Every Move with RFID (Nashville: Nelson Current, 2005); Laura Hildner, “Defusing the Threat of RFID: Protecting Consumer Privacy Through Technology-Specific Legislation at the State Level” (2006) 41 Harv. Civil Rights-Civil Liberties L. Rev. 133.
[2] U.S. Department of Health and Human Services, Food and Drug Administration, 21 CFR Part 880 [Docket No. 2004N-0477] “Medical Devices; Classification of Implantable Radiofrequency Transponder System for Patient Identification and Health Information” (10 December 2004), online: <http://www.fda.gov/ohrms/dockets/98fr/04-27077.htm>. Although most apparently relevant to implantable RFIDs, human dignity concerns are also equally implicated in the external use of RFIDs where the specific use is to track the human beings to which they are linked. One example of such a use where human dignity concerns were raised is that in the case of Brittan Elementary School in Sutter, CA, where students were outfitted with RFID tags around their necks. Their movements inside the school were tracked by hand-held computers kept by the teachers. See e.g. Garry Boulard, “RFID: Promise or Peril?” State Legislatures (December, 2005) 22 at 22.
[3] With respect to tracking migrant workers in the US, see online: LiveScience <http://www.livescience.com/scienceoffiction/060531_rfid_chips.html>. It has also been suggested for use in soccer players to track their on field movements, see online: Manchester Evening News <http://www.manchestereveningnews.co.uk/news/s/217/217056_man_utd_plan_to_chip_players.html>.
[4] See online: Med-IC Digital Package <http://www.med-ic.biz/certiscan.shtml>.
[5] For example, while Dr. John Halamka discusses the privacy implications of the VeriChip, he appears to do so only within a strict informational privacy analysis, which in the context of something being implanted into the body, seems somewhat lacking. John Halamka, “Straight from the Shoulder” (2005) 353 New Engl. J. Med 331.
[6] Thomas C. Greene, “Feds Approve Human RFID Implants” The Register 14 October 2004, online: The Register <www.theregister.co.uk/2004/10/14/human_rfid_implants/>.
[7] Mark David, “Implantable RFID May Be Easy, But That Doesn’t Mean It’s Ethical”, online: Electronic Design <http://www.elecdesign.com/Articles/Index.cfm?AD=1&ArticleID=14794>.
[8] In the bioethical context, see e.g. James F. Childress, “Human Cloning and Human Dignity: The Report of the President’s Council on Bioethics” (2003) 33:3 Hastings Center Report 15 at 16 and Timothy Caulfield, “Human Cloning Laws, Human Dignity and the Poverty of Policy Making Dialogue” (2003) 4:3 BMC Medical Ethics 2.
[9] Deryck Beyleveld & Roger Brownsword, Human Dignity in Bioethics and BioLaw (Oxford: Oxford University Press, 2001) at 64.

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