Big Brother on a Tiny Chip: Ushering in the Age of Global Surveillance Through the Use of Radio Frequency Identification Technology and the Need for Legislative Response

June 16, 2012

One of the most controversial provisions of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“USA PATRIOT Act”) allows the government to track the books people check out of the library. The critics of this provision argue that allowing the government to monitor what books people read is an unprecedented invasion of privacy that will erode civil liberties and chill free speech. These critics may be surprised to learn that rapid advances in Radio Frequency technology put the private sector, not the government, on the verge of what can be described as a massive bugging program. The culprit is a tiny microchip called a Radio Frequency Identification (“RFID”) tag that can be inserted into everyday household items, thus allowing the government, or, for that matter, virtually anybody with a scanner to track the physical location of every carton of milk, every child’s toy, and every pair of socks that consumers buy. Compared to the potential privacy threats stemming from the unrestricted use of these tags, the much feared “sneak-and-peak” provisions of the USA PATRIOT Act look like child’s play.
This Recent Development seeks to accomplish four main objectives. First, it describes the nature of RFID technology, and the risks that RFID technology poses to our privacy by greatly enhancing location-tracking capabilities of the government, the companies that use the technology and ordinary criminals that may abuse it. Second, this Recent Development examines the precise nature of the privacy rights threatened by RFID technology by discussing the concept of location privacy—a new understanding of privacy as freedom of an individual from having his or her movements monitored without their consent. Third, this Recent Development demonstrates that existing constitutional and legislative frameworks are not designed to protect location privacy from unauthorized privacy violations. Finally, this Recent Development proposes legislative solutions, including incorporating the concept of location privacy into the Electronic Communications Privacy Act, regulating RFID technology through the Federal Communications Commission pursuant to its authority over public airwaves, and requiring encryption mechanisms in the RFID tags themselves.