On October 12, 2007, California Governor Arnold Schwarzenegger signed into law California Chapter 538 (SB No. 362) Section 52.7 that bans forced human implantation of Radio Frequency Identification Devices (RFID) chips. Human-implantable RFID is a state-of-the-art identification technology that uses rice-grain-sized transmitters that are implanted just beneath the skin. With the enactment of section 52.7, California follows Wisconsin and North Dakota as states that have passed similar bans. Other states that are considering, or have considered the forced human implantation, include Colorado, Michigan, and Ohio, where state legislators have introduced similar bills, and Florida and Oklahoma, where similar bills have failed during recent legislative sessions.

The California law states that “(a) [e]xcept as provided in subdivision (g), a person shall not require, coerce, or compel any other individual to undergo the subcutaneous implanting of an identification device. The law further states that: (b) [a]ny person who violates subdivision (a) may be assessed an initial civil penalty of no more than ten thousand dollars ($10,000), and no more than one thousand dollars ($1,000) for each day that the violation continues until the deficiency is corrected.” Under the new California law “identification device” is defined to mean “any item, application, or product that is passively or actively capable of transmitting personal information... .” The definition of “personal information” includes “[a]ny unique personal identifier.”

The Wisconsin and North Dakota laws carry similar penalties. The Wisconsin ban, Section 146.25, signed into law on May 31, 2006, carries an identical ten thousand ($10,000) penalty, but each day of continued violation constitutes a separate offense. A violation of the North Dakota ban, Ch. 12.1-15-06, signed into law in April of this year, constitutes a class A misdemeanor.

RFID technology uses radio waves to transmit digital identifiers that facilitate the efficient delivery of information. Proposed uses of the implantable RFID technology, however, raises information privacy and data security concerns. The RFID transmission can be passive or active, and may use either high frequency (HF) or ultra high frequency (UHF) radio signals. Depending on the combination of the technology used, RFID signals can be read from RFID readers that are merely inches, or up to 70 feet away. In 2005, the Food and Drug Administration (“FDA”) granted approval for the use of human-implantable RFID. After FDA approval, in 2006, one Ohio-based company required the implants for employees who had access to the company’s data center. At least two employees underwent the implant procedure. A Florida-based patient care facility intends to launch a voluntary RFID implant program that will help monitor Alzheimer’s patients. Other applications of the technology include RFID tattoos that use geometric shapes and specialized ink to produce unique passive radio signals.

While the trend suggests that more states and the federal government will eventually consider the issue of human-implantable RFID, at least some European club-goers appear to embrace the use of RFID technology. One Spanish nightclub offers its VIP patrons the option of an RFID implant in order to avoid entrance lines. Certainly, privacy and data security concerns will continue to be the focus of future debates regarding the use of human-implantable RFID technology, as well as other less invasive forms of the technology, such as RFID tattoos.