California Bans Forced RFID Tagging of Humans

State Senator Joe Simitian announced yesterday that Governor Schwarzenegger signed his Senate Bill 362, which would prohibit employers and others from forcing anyone to have a radio frequency identification (RFID) device implanted under their skin. The bill will go into effect on January 1, 2008.

RFID "tags" are tiny chips with miniature antennae that can be embedded in almost anything. Using radio waves, RFID can help identify and track objects, animals, or people. Devices known as "readers" access the information on the tags.

"RFID technology is not in and of itself the issue. RFID is a minor miracle, with all sorts of good uses," said Simitian. "But we cannot and should not condone forced 'tagging' of humans. It's the ultimate invasion of privacy."

Despite wide-ranging support, the RFID industry declined to support SB 362. Simitian described the RFID industry's silence on the issue as "unfortunate and regrettable." He noted that, "While we're having a robust debate about the privacy concerns associated with the use of RFID in government identity documents, at the very least, we should be able to agree that the forced implanting of under-the-skin technology into human beings is just plain wrong. I'm deeply concerned that the folks who make and market RFID technology were 'AWOL' on this issue."

"With the signing of SB 362, California has taken an important first step in crafting legislation to properly balance the potential benefits of RFID technology while safeguarding privacy and security," said Nicole Ozer, Technology and Civil Liberties Policy Director at the ACLU of Northern California. "We are pleased that the Governor has stood up for the privacy and security rights of Californians and not allowed these rights to be 'chipped' away by inappropriate uses of RFID technology."

California now joins Wisconsin and North Dakota, which have already banned forced RFID implantation in humans.

In 2004, the U.S. Food and Drug Administration (FDA) approved an RFID tag for humans called VeriChip, which would allow healthcare professionals to access a person's medical history in the event the person couldn't communicate. The chip's parent company, VeriChip Corporation, reports that 2,000 people have already had tags implanted.

VeriChip also has clients around the world that want to use human implantation as a form of identification. For example, the attorney general of Mexico and 18 of his staff members were implanted with chips to allow them to get into high-security areas.

In 2006, a Cincinnati video surveillance company called Citywatcher.com raised eyebrows when it required employees who work in its secure data center to be implanted with a chip.

"This may sound Orwellian," said Simitian, "but it's real, and it just makes sense to address it now. We can't have employers requiring their workforce to get 'tagged'. There are other ways to secure a company's physical and intellectual property -- it certainly shouldn't be at the expense of a person's right to privacy."

The Council on Ethical and Judicial Affairs (CEJA), which develops ethics policies for the American Medical Association, recently issued a report raising concerns about the use of under-the-skin RFID tags in humans. They found that RFID devices can compromise a person's privacy and security because there is no assurance that the information contained in the tags can be properly protected. CEJA further found that RFID tagging may present physical risks because the tags may travel under the skin, making them hard to remove at a later time.

SB 362 would not affect voluntary implantation of RFID or any other device.