FYI.

This story is over 5 years old.

Tech

Can Your Boss Legally Force You To Implant A Tracking Chip?

It's already happened in Mexico, and bodyhacking law in the United States is completely unexplored.

​ In Sweden, there exists an office where employees can have a small chip implanted in their hand that will allow them to open doors, unlock company smartphones and laptops, and access the copy machine.

It's a voluntary program set up by a forward-thinking group of body hackers, but what happens when employers try to require their employees to become cyborgs?

Radio frequency identification, or RFID, chips are nothing new. In fact, you can implant a near field communications chip—which is more advanced than RFID—in yourself for a hundred​ bucks. And the things they can do—unlock doors, log you into computers—are relatively rudimentary. But implantable chips are quickly improving, and the day when some employer wants to track your whereabouts with an implantable chip may not be far off. It's something that biohacking proponents have already considered.

Advertisement

"If we help show people that this is really not that complicated, it's making our lives easier, I think people will welcome this tool," Hannes Sjoblad, of the Swedish Biohacking Group told the BBC, which firs​t reported this story. "I think there might be a day when the tax man or the big corporates will come to us and say 'hey, try this chip, try this implant' and then we, the biohackers who understand this technology, will be able to question their proposals."

"We can hardly call this crazy"

When Sjoblad imagines big business and governments wanting to implant their employees, he's thinking about the future. But when Jane Chong, a lawyer and researcher at the Brookings Institution, considers the idea of compulsory biochip implants, she looks at the past. Because it's already happened.

In 2004, the Mexican government requir​ed its Attorney General and 160 of its top federal prosecutors and investigators to be implanted with an RFID chip. The chips were used to access secure areas of a then-new building, and to automatically keep tabs on officials who accessed specific sensitive data, as a means to fight corruption.

"As it turns out, we can hardly call this crazy from our side of the border—the workplace analytics business is booming here, with employers increasingly relying on sophisticated digital monitoring mechanisms to track their employees' performance," she told me.

Monitoring tools are used to track emplo​yees' computer use, a waiter's performance at a restaurant, and even, in some cases, to record every verbal interaction an employee has at work.

Advertisement

"Together, I feel these points naturally point us toward your disquieting question: could private US companies—or the US government—legally require RFID chips or something similar as a condition of employment?" Wong said.

In the United States, it's unclear whether or not it'd actually be legal for an employer to require an implant as a condition of employment. Chong suggests those who object could fight it on the same grounds that many fight vaccine requirements. The Americans with Disabilities Act and the Civil Rights Act of 1964 provides several potential "outs" from such a clause.

But the answer isn't immediate​ly obvious, and that oversight is the focus of Chong's and colleague Benjamin Wittes's September paper, "Our Cyborg F​uture: Law and Policy Implications."

"Performance and pay raises could be accessible only to those who 'opt in' to a system of incessant monitoring"

The two argue that there needs to be some clear legal frameworks put in place about what constitutes a cyborg, and what rights they have. "The more integrated [machines] become, it's going to be less plausible to say, 'this is just a human with rights using a machine with no rights,'" Wittes​ told me.

"The law remains embryonic on virtually all points of interest to the adolescent cyborg: everything from your right to access your own data, to your right to restrict access to your data, to your ability to secure something more than property restitution when an airline destroys your custom mobility assistance device and leaves you bedridden for a year," he added in a blo​g post about the paper.

Advertisement

The lack of clear lines and legal framework extend to the possibility of forced cyborgdom. In fact, Wittes and Chong are working on a follow-up book that will partly explore the question I'm asking here.

After some highly hyped stories from a few years ago about employers asking for prospective employees' Facebook passwords ​as a condition of employment, several states took steps to outlaw the practice (whether that modicum of privacy protection extends to stu​dents is another question altogether). Chong says that, if a company were to try to require a chip implant, she'd expect a similar backlash.

A BBC journalist gets a chip implanted in his hand. Screengrab: ​BBC

"The law is already addressing that less interesting version of this problem," she said. "My guess is that if RFID chips threaten to really catch on, we'll see a big rush to legally counter the trend. Irrespective of whether existing statutes courts are actually likely to construe RFID implantation clauses in employment contracts as enforceable, we'll see support for state laws, and possibly a federal law, forbidding private and public employers from making physically invasive devices of this kind compulsory."

But hey, RFID chips are actually a pretty bad way of tracking employees. In fact, we carry much more sophisticated hardware with us, 24/7, already.

Employers may take a look at using "equally 24/7 but subtler, seemingly noninvasive devices which far outstrip RFID chips when it comes to giving particular third-parties information about our lives, whereabouts, and thoughts," Chong said. Say, wearables or, well, your smartphone. And that's already happening.

"It could be as basic as boosted performance feedback—and performance, and pay raises, and so forth—accessible only to those who 'opt in' to a system of incessant monitoring," Chong said.

The truth that many of us know too well, then, is that we don't really need to become cyborgs to be treated by our employers like one.