Written By: Michael Walsh
A Byte of Online Voting
Sorry, you cannot vote online in the primaries or in presidential elections this year. That is, unless you have been selected to participate in one of the few small-scale pilot programs, such as the DemocracyLive system in Seattle, Washington, the Voatz platform in West Virginia, or most recently, the Shadow voting tool used for the 2020 Iowa caucuses just a few weeks ago. These voting tools use blockchain technology to generate a unique hash for each vote. To mitigate the risk of election tampering, the votes are submitted, but not counted electronically.  Each electronic submission is verified with a printed version of the ballot, then the printed ballots are tallied to calculate the total number of votes. These electronic systems are usually deployed in areas in which voter turnouts are low or voting is only possible by remote means. Ideally, these types of services may help improve voter turnout in the United states—a country in which less than 56% of voting-age adults participated in the 2016 presidential election.
There is little federal oversight for online voting infrastructure, but Congress allocated an additional $380 million for voting infrastructure and security improvements, and 85% of those funds are estimated by the U.S. Elections Assistance Commission to be used by states before the 2020 election. Ideally, those funds will help to alleviate problems in areas with intermittent or low bandwidth internet connections, such as some of the precincts that experienced problems with the Shadow voting app during the 2020 Iowa caucuses. Additionally, a slew of other bills has been introduced to help secure elections from (predominantly foreign) interference (see S.2669; H.R. 1946; H.R. 4990). One amendment to the Help America Vote Act (HAVA) of 2002, passed in December 2019, allocated an additional $400 million to help secure voting infrastructure. However, some experts indicate that modernizing and securitizing current voting infrastructure would cost nearly $2.5 billion, not considering recurring maintenance costs. To modernize Pennsylvania’s infrastructure alone is estimated to cost upwards of $150 million, which accounts for nearly half of the total HAVA funds allotted from Congress.
Election Security Concerns and the 2016 Election
The costs to establish secure voting infrastructure do not seem so exorbitant when considering voter trust. 2016 marked the first year in which Russian interference influenced the presidential elections. This foreign interference happened not by meddling with voter infrastructure (which now usually verifies electronically submitted votes with paper ballots), but by alternative means such as phishing, distributed denial-of-service (“DDoS”), and denial-of-service (“DoS”) attacks. These kinds of interference will certainly not be the last. A recent national survey asked politicians about cybersecurity risks, “[f]orty percent said they’ve had an account compromised in a phishing attack. And 60% said they haven’t significantly updated the security of their accounts since 2016.” Even without direct interference with voter infrastructure, threat actors can make a meaningful difference in the outcome of elections with phishing, DDoS and DoS attacks on other vectors including campaign email accounts or insecure servers used by political groups. In response, Microsoft and Google (the companies that provide the most popular email services in the nation) have been implementing security measures to prevent these attacks. Most countermeasures focus on implementing typical information security protections, such as multi-factor authentication, tokenization, and software-based mitigation techniques, such as spoofing and phishing detection.
Experts still have many questions about the security and privacy of electronic voting systems, most particularly those that are completely paperless. Nevertheless, some voting this year will be done in select states by phone or PC through the Voatz system (but with paper ballot verification). Voatz uses blockchain technology paired with biometric data from users’ phones, such as face scans and fingerprints. Although this version of multi-factor authentication may alleviate fraudulent voting, it poses serious privacy concerns and does not address other salient security risks of online voting, such as phishing, DDoS, and DoS attacks. Regardless, the future of voting is likely to be a digital one, as a recent study from University of Chicago found. The survey estimated that voter turnout could increase by several percentage points, a figure that could compound with the help of universally compatible voting technology.
 Emily S. Rueb, Voting by Phone Gets a Big Test, but There Are Concerns, The New York Times (Jan. 23, 2020), https://www.nytimes.com/2020/01/23/us/politics/mobile-voting-washington.html [https://perma.cc/B2SR-NF88].
 Voatz, Frequently Asked Questions, https://voatz.com/faq.html [https://perma.cc/9RBS-6BK5].
 Rueb, supra note 1; Emily Dreyfuss, Smartphone Voting Is Happening, but No One Knows if It’s Safe, Wired (Aug. 9, 2018), https://www.wired.com/story/smartphone-voting-is-happening-west-virginia/ [https://perma.cc/JC2B-SYWF].
 Drew Desilver, U.S. Trails Most Developed Countries in Voter Turnout, Pew Research Center (May, 21 2018), https://www.pewresearch.org/fact-tank/2018/05/21/u-s-voter-turnout-trails-most-developed-countries/ [https://perma.cc/4T3C-4JD4].
 The Impact of HAVA Funding on the 2018 Elections, U.S. Election Assistance Commission (2019), https://www.eac.gov/sites/default/files/paymentgrants/TheImpactofHAVAFundingonthe2018Elections_EAC.pdf [https://perma.cc/6KDW-RNEJ].
 Id.; U.S Senate Committee on Rules and Administration Oversight of the Election Assistance Commission, U.S Election Assistance Commission (May 15, 2019), https://www.rules.senate.gov/imo/media/doc/EAC_Testimony.pdf [https://perma.cc/95VB-NA4H]; Elizabeth Howard, Defending Elections: Federal Funding Needs for State Election Security, The Brennan Center (July 18th, 2019), https://www.brennancenter.org/our-work/research-reports/defending-elections-federal-funding-needs-state-election-security [https://perma.cc/P7UC-8ZW4].
 Kevin Roose, The Only Safe Election is A Low-Tech Election, The New York Times (Feb. 4, 2020), https://www.nytimes.com/2020/02/04/technology/election-tech.html, [https://perma.cc/2C8W-982G]; Nick Corasaniti, Sheera Frenkel and Nicole Perlroth, App Used to Tabulate Votes is Said to Have Been Inadequately Tested, The New York Times (Feb. 3, 2020), https://www.nytimes.com/2020/02/03/us/politics/iowa-caucus-app.html [https://perma.cc/B7TG-YJ2P]; Keith Collins, Denise Lu, Charlie Smart, We Checked the Iowa Caucus Math. Here’s Where it Didn’t Add Up, The New York Times (Feb. 14 2020), https://www.nytimes.com/interactive/2020/02/14/us/politics/iowa-caucus-results-mistakes.html [https://perma.cc/HH8N-DURV].
 S.2669, 116th Cong. (2019); H.R. 1946, 116th Cong. (2019); H.R. 4990, 116th Cong. (2019).
 U.S. Election Assistance Commission, How Can The States Use the Funds? (Jan. 6, 2020) https://www.eac.gov/how-can-states-use-funds-0 [https://perma.cc/79W6-WHYA]; H.R. 1158 § 501, 116th Cong. (2019).
 Lawrence Norden and Edgardo Cortez, What Does Election Security Cost?, The Brennan Center (Aug. 15, 2019), https://www.brennancenter.org/our-work/analysis-opinion/what-does-election-security-cost [ https://perma.cc/TL69-YCU2].
 Howard, supra note 8.
 U.S. Senate Committee 116th Congress, Report of the Select Committee on Intelligence United States Senate on Russian Active Measures Campaigns and Interference in the 2016 U.S. Election Volume 1: Russian Efforts Against Election Infrastructure With Additional Views
https://www.intelligence.senate.gov/sites/default/files/documents/Report_Volume1.pdf [https://perma.cc/CZ47-7XLY]; Andy Greenberg, Feds’ Damning Report on Russian Election Hack Won’t Convince Skeptics, Wired (Jan. 6, 2017), https://www.wired.com/2017/01/feds-damning-report-russian-election-hack-wont-convince-skeptics/ [https://perma.cc/2T8Q-YZR9]; David E. Sanger and Catie Edmonson, Russia Targeted Election Systems in All 50 States, Report Finds, The New York Times (July 25, 2019), https://www.nytimes.com/2019/07/25/us/politics/russian-hacking-elections.html [https://perma.cc/78SM-YVZ4].
 Andy Greenberg, Everything We Know About Russia’s Election-Hacking Playbook, Wired (June 9 2017), https://www.wired.com/story/russia-election-hacking-playbook/ [https://perma.cc/EAZ8-W5Z4]; Shannon Bond, 2020 Political Campaigns Are Trying To Avoid A 2016-Style Hack, Nat’l Pub. Radio (Jan. 28, 2020), https://www.npr.org/2020/01/28/799062773/2020-political-campaigns-are-trying-to-avoid-a-2016-style-hack [https://perma.cc/T2ER-KQ9U]; Jeremey Ashkenas, Was It a 400-Pound, 14-Year-Old Hacker, or Russia? Here’s Some of the Evidence, The New York Times (Jan. 26, 2017), https://www.nytimes.com/interactive/2017/01/06/us/russian-hack-evidence.html [https://perma.cc/U9CX-N829].
 Miles Parks, Russian Hackers Targeted The Most Vulnerable Part Of U.S. Elections Again, Nat’l Pub. Radio (July 28, 2018), https://www.npr.org/2018/07/28/633056819/russian-hackers-targeted-the-most-vulnerable-part-of-u-s-elections-again [https://perma.cc/MR8E-3H3Q]; Shannon Bond, Microsoft Says Iranians Tried To Hack U.S. Presidential Campaign, Nat’l Pub. Radio (Oct. 4, 2019), https://www.npr.org/2019/10/04/767274042/microsoft-says-iranians-tried-to-hack-u-s-presidential-campaign [https://perma.cc/K9ST-T55N].
 Bond, supra note 15.
 Tom Burt, Protecting Democracy with Microsoft AccountGuard, Microsoft Blog (August 20, 2018), https://blogs.microsoft.com/on-the-issues/2018/08/20/protecting-democracy-with-microsoft-accountguard/ [https://perma.cc/7MGY-MW5X]; Lily Hay Newman, Google’s Giving Out Security Keys to Help Protect Campaigns, Wired (Feb. 11, 2020), https://www.wired.com/story/google-free-security-keys-campaigns/ [https://perma.cc/4TN7-9SQ2].
 David Jefferson et al., What We Don’t Know About the Voatz “Blockchain” Internet Voting, System (May 1, 2019), https://cse.sc.edu/~buell/blockchain-papers/documents/WhatWeDontKnowAbouttheVoatz_Blockchain_.pdf [https://perma.cc/62H2-MQN4]; Michael A. Specter et al, The Ballot is Busted Before the Blockchain: A Security Analysis of Voatz, the First Internet Voting Application Used in U.S. Federal Elections, Mass. Inst. of Tech., https://internetpolicy.mit.edu/wp-content/uploads/2020/02/SecurityAnalysisOfVoatz_Public.pdf [https://perma.cc/89H7-XLP2]; Abby Abazorius, MIT Researchers Identify Security Vulnerabilities in Voting App, MIT News (Feb. 13, 2020), http://news.mit.edu/2020/voting-voatz-app-hack-issues-0213 [https://perma.cc/AA49-97FS]; Robby Mook et al., Cybersecurity Campaign Playbook, Harv. Kennedy School Belfer Center (Nov. 2017), https://www.belfercenter.org/CyberPlaybook [https://perma.cc/82NN-KA57]; Miles Parks, In 2020, Some Americans Will Vote On Their Phones. Is That The Future?, Nat’l Pub. Radio (Nov 7, 2019), https://www.npr.org/2019/11/07/776403310/in-2020-some-americans-will-vote-on-their-phones-is-that-the-future [https://perma.cc/4W62-9TLS].
 Voatz, supra note 2.
 Jefferson, supra note 19.
 David Stone, Jul 30, 2019 West Virginia Was the First State to Use Mobile Voting. Should others follow? U. of Chi. (July 30, 2019), https://news.uchicago.edu/story/voting-mobile-devices-increases-election-turnout [https://perma.cc/NAF9-69B5]; Anthony Fowler, Promises and Perils of Mobile Voting, U. of Chi. (June 2019), https://cpb-us-w2.wpmucdn.com/web.sas.upenn.edu/dist/7/538/files/2019/06/Fowler_MobileVoting.pdf [https://perma.cc/6N8C-VQGZ].
Written by: Michael Walsh
Disclaimer: This post does not contain legal advice. I am not a licensed attorney nor am I qualified to give compliance help or other legal services. This post is for educational purposes only.
Due to a resurgence of the COVID-19 pandemic in many states, federal and state health agencies have deployed several technologies to help track (and ultimately quell) the spread of the pandemic. Temperature scans and other screening technologies have become commonplace, and nonconsensual mass temperature screening has been used to mitigate the spread of other major pandemics in the past. The Food and Drug Administration (FDA) issued comprehensive, but nonbinding guidance on the use of thermal imaging technologies for COVID diagnostics, which advocates for the use of thermal imaging tech as an initial screening tool in “high throughput areas” such as airports, businesses and other high density areas where traditional temperature measuring techniques would be ineffective or impracticable.
Technical Limitations and Efficacy of Temperature Screening
Some scientific studies support the use of telethermographic devices or non-contact infrared thermometers (NCITs) to accurately measure skin temperature (which correlates with core temperature). NCITs are thermal imaging systems that measure infrared radiation that is omitted from febrile humans (humans with a detectable fever) and convert that radiation map into a relative temperature measurement. However, the FDA emphasizes that such technologies are not suitable as a sole means of diagnosing COVID-19.
NCITs can be effective at sensing relative temperatures but have palpable limitations that can affect the technology’s efficacy. The American Civil Liberties Union (ACLU), citing a clinical study of NCITs, asserts that mass screening of open rooms can lead to wildly inaccurate temperature measurements. The FDA recommends that temperature scans should be made in highly controlled environments or in rooms which have a temperature between 68-76 degrees Fahrenheit and that have no draft, radiant heat, (filament) light interference, or reflective backgrounds. Because the technology senses relative infrared radiation, most systems also require a controlled temperature reference (called a blackbody) to compare the radiation density between the individual and the ambient environment. A relatable analogy to the purpose of the blackbody is comparing a white tissue (blackbody) to the color (heat radiation) of one’s teeth to determine if one’s teeth are truly white (heat saturated). The relative differences between the thermal maps of the blackbody and the scanned individual can be used to estimate skin temperature with relatively high confidence (this study found skin temperature variations of ±10 degrees Fahrenheit and within a 95% confidence interval), meaning that measured temperatures were generally accurate within 2-3 degrees Fahrenheit.
Additionally, FLIR, one of the most prominent thermographic device manufacturers concedes that the technology has technical limitations and is not suitable as the sole diagnostic tool for identifying individuals with COVID.
Regardless, the aforementioned CDC study found that although thermal imagery systems are highly dependent on controlled environments, infrared tech can reliably detect “elevated skin temperatures” and are significantly more accurate at determining fever than self-reported questionnaires (In this study, only one tenth of those who reported a fever were actually febrile). Overall, the technology, once calibrated and controlled, can determine core temperatures with similar accuracy to more traditional oral temperature measurements.
Legal Implications of NCITs
NCITs are governed exclusively by the FDA under part 201(h) of the FD&C Act 21 U.S.C. § 321(h), which governs some medical devices. Generally, these medical devices are those which are intended for use in the diagnosis of disease or other conditions, or in the “cure, mitigation, treatment, or prevention of disease.” However, thermal devices that are not intended for such a purpose are not within the regulatory scope of the FDA, meaning the Food, Drug, and Cosmetic Act (FD&C) does not apply to those businesses or individuals using nonmedical thermal devices. Of course, the definition of a medical device under 201(h) is dependent on the intent of the user, so thermal imaging systems that were originally unintended for COVID screening should still comply with the FD&C and other relevant FDA guidance. However, the FDA promotes the use of thermal imaging technologies as a preliminary tool for COVID screening. The FDA states that businesses (because the COVID-19 pandemic is defined as a public health emergency) likely need not comply with many medical device regulations so long as such use does not “create undue risk.”
HIPAA, the flagship federal legislation that protects medical health information is rendered obsolete in the age of contact tracing. HIPAA applies primarily to health plans, clearinghouses and health care providers, of which Google, Apple, PwC, PopId and Clear (contact tracing powerhouses) are not.
It is also important to note that thermal imagery can qualify as a “search,” but Constitutional protections for unreasonable searches and seizures only apply to government actors. However, there is evidence that tech companies have shared location data with government agencies to help track the spread of COVID. This data may be aggregated and anonymized, but combining relevant data sets may reidentify that data, revealing private medical data traceable to specific individuals. Apparently, 63% of individuals can be uniquely identified by a combination of gender, date of birth, and zip code alone. By combining different data sets which have both “anonymized” or “aggregate” direct or indirect personal identifiers, many anonymous data sets can be reidentified, compromising the privacy of specific individuals.
The Americans with Disabilities Act (ADA) enforces nondiscrimination based on disability (under which COVID may qualify) and binds all private employers with fifteen or more employees. However, the U.S Equal Employment Opportunity Commission (EEOC) explicitly states that the ADA should not interfere with COVID-19 guidelines made by the CDC. Temperature and other COVID tests must be ‘job related and consistent with business necessity’ and employees may be furloughed or excluded if they have a “medical condition” that would pose a direct threat to health or safety (such as COVID-19).
State Privacy Laws
Of course, there are some existing protections such as the California Consumer Privacy Act (CCPA), Vermont’s data broker registration law, and Illinois’s biometrics law (BIPA), each of which either contain a public health emergency, “direct relationship” or other exception, meaning that most contact tracing companies are exempted from complying with these privacy laws until they are amended or COVID is no longer classified as a health emergency.
Two companies, Clear and PopID have already begun using biometric face scanning and thermal imaging technologies to monitor COVID-19 in businesses and other public places. Some restaurants are implementing these screening procedures in response to the White House guidelines, which require businesses to “monitor workforce[s] for indicative symptoms.”
Pending Federal Legislation
Amid concerns of private health information gathered from COVID screening, senators have introduced a COVID-19 privacy bill which would: (1) require express consent to collect, process or transfer “personal health, geolocation, or proximity information”; (2) disclose to whom that data will be transferred to and retained by; (3) give individuals the opportunity to opt out of their health information being stored or compiled; and (4) give individuals the right to delete or deidentify all personal information that is no longer being used. However the bill has been criticized for preempting stricter state laws (including the CCPA) and not providing a private right of action.Another bill, the Public Health Emergency Privacy Act (PHEPA), is sufficiently broad in its definitions of medical health data, contains clauses for nondiscrimination against those who opt out of COVID tracing programs, and does not undermine existing state data privacy laws through preemption.
The novel coronavirus is just that, novel. Government health agencies and businesses are scrambling to adapt to the constantly changing circumstances. Due to resurgences in cases, the global pandemic has appropriately been categorized as a national health crisis. There is evidence that contact tracing, health screening, and mass temperature scanning can help mitigate the spread of the virus, or at the very least, allow researchers to learn more about the virus. The remaining question is what we are willing to give up in the process. Will government agencies forfeit the private health data that was shared with them once the virus subsides? If so, how will the government and cooperating tech companies protect individuals’ data privacy?
Pejman Ghassemi et al., Best Practices For Standardized Performance Testing of Infrared Thermographs Intended For Fever Screening, PLoS ONE, 1710 (Sept. 19, 2018), https://doi.org/10.1371/journal.pone.0203302 [https://perma.cc/SUB3-8JKB].
U.S. Food and Drug Administration, Enforcement Policy For Telethermographic Systems during the Coronavirus Disease 2019 (COVID-19) Public Health Emergency, Food And Drug Administration, 2 (April 2020), https://www.fda.gov/media/137079/download [https://perma.cc/SZ4J-RGXU].
An Nguyen, et al., Comparison of 3 Infrared Thermal Detection Systems and Self-Report for Mass Fever Screening, Centers For Disease Control and Prevention, 1713-14 (Nov. 2010), https://www.cdc.gov/eid/article/16/11/10-0703 [https://perma.cc/5CXG-TAZS].
 U.S. Food And Drug Administration, Thermal Imaging Systems (Infrared Thermographic Systems/ Thermal Imaging Cameras), Food and Drug Administration (May 13, 2020), https://www.fda.gov/medical-devices/general-hospital-devices-and-supplies/thermal-imaging-systems-infrared-thermographic-systems-thermal-imaging-cameras [https://perma.cc/89CQ-WR8N].
U.S. Food and Drug Administration, supra note 2, at 3.
 Jay Stanley, Temperature Screening and Civil Liberties During an Epidemic, American Civil Liberties Union, 1-4 (May 19, 2020), https://www.aclu.org/aclu-white-paper-temperature-screening-and-civil-liberties-during-epidemic [https://perma.cc/8ZVH-AUHP].
U.S. Food and Drug Administration, supra note 4.
 Nguyen, supra note 3, at 1713.
Frequently Asked Questions: Thermal Imaging for Elevated Skin Temperature Screening, FLIR (May 13, 2020), https://www.flir.com/discover/public-safety/faq-about-thermal-imaging-for-elevated-body-temperature-screening/ [https://perma.cc/J2AG-X9MM].
 Nguyen, supra note 3, at 1713-15.
 Id. at 1713.
 U.S. Food and Drug Administration, supra note 2, at 3.
 Id. at 4.
 Id.; pt. 510(k) of the FD&C Act (21 U.S.C. § 360(k)) (requiring device certification and quality testing before the introduction of the device into interstate commerce); 21 C.F.R. pt. 807.81 (requiring device manufacturers to submit a premarket approval request to the FDA before commercial distribution of the device); 21 C.F.R. pt. 806 (governing the scope and definitions of manufacturer liability for medical devices that have been removed or corrected from current marketed equivalents); 21 C.F.R. pt. 80 (governing medical device registration); 21 C.F.R. pt. 820 (governing device quality control and system requirements); 21 C.F.R. pt. 830 (requiring unique identifiers for medical devices); 21 CFR pt. 801.20 (governing labeling requirements for medical devices).
U.S. Department of Health and Human Services, HIPAA for Professionals (April 2015), https://www.hhs.gov/hipaa/for-professionals/privacy/index.html [https://perma.cc/RE33-8JTK]; Adam Schwartz, Two Federal COVID-19 Privacy Bills: A Good start and a Misstep, Electronic Frontier Foundation (May 28, 2020), https://www.eff.org/deeplinks/2020/05/two-federal-covid-19-privacy-bills-good-start-and-misstep [https://perma.cc/TFW6-LWBR].
 Garret Stone, Constitution in Crisis: The Fourth Amendment and Combating COVID-19, Wake Forest J. of L. and Pol’y (April 20, 2020), https://wfulawpolicyjournal.com/2020/04/20/constitution-in-crisis-the-fourth-amendment-and-combating-covid-19/ [https://perma.cc/98TB-F4TM].
Boris Lubarsky, Re-identification of “Anonymized” Data, 1 Geo. L. Tech Rev. 202 (2017), https://georgetownlawtechreview.org/wp-content/uploads/2017/04/Lubarsky-1-GEO.-L.-TECH.-REV.-202.pdf [https://perma.cc/AU9G-E4FA].
U.S. Equal Employment Opportunity Commission, What You should Know About COVID 19 and ADA Rehabilitation Act, and Other EEO Laws (June 17, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws [https://perma.cc/F2TN-LAY5].
 Adam Schwartz, Vermont’s New data Privacy Law, Electronic Fronteir Foundation (Sept. 27, 2018), https://www.eff.org/deeplinks/2018/09/vermonts-new-data-privacy-law [https://perma.cc/MH8P-QE4B]; Daniel Gottlieb, California Bill Proposes CCPA Exceptions for HIPAA De-Identified Information, McDermott, Will and Emory, (Jan. 17, 2020), https://www.mwe.com/de/insights/california-bill-proposes-ccpa-exceptions-for-hipaa-de-identified-information-other-health-data/ [https://perma.cc/BR9P-GJ2Z]; Illinois General Assembly, § 740 ILCS, https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3004&ChapterID=57s/california-bill-proposes-ccpa-exceptions-for-hipaa-de-identified-information-other-health-data/ [https://perma.cc/8TBQ-CDUP].
Natasha Singer, Employers Rush to Adopt Virus Screening. The Tools May Not Help Much., New York Times, (May, 11, 2020), https://www.nytimes.com/2020/05/11/technology/coronavirus-worker-testing-privacy.html [https://perma.cc/7AMC-QANC].
Centers for Disease Control, Opening Up America Again, https://www.whitehouse.gov/openingamerica/ [https://perma.cc/MKT6-Z9MG].
John Thune, Thune Wicker, Moran, Blackburn Announce Plans to Introduce Data Privacy Bill, US Senator for South Dakota (April 30, 2020) https://www.thune.senate.gov/public/index.cfm/press-releases?ID=37E557F5-566E-4872-A66D-EBBFEC1D190A [https://perma.cc/F6RM-LCZN].
U.S. Department of Health and Human Services, supra note 17.
A State by State Determination
There are currently no known U.S. employers that require employees to have a device implanted on their person as a condition of employment. However, many states are implementing preemptive legislation to prohibit such a thing from becoming a possibility. Most recently, the state of Michigan introduced the “Microchip Protection Act,” which passed the House and now heads to the Senate for further consideration. The act would prevent employers from requiring employees to have devices implanted into their bodies as a condition for employment, and prohibits employers from discriminating against employees who refuse.
Usually, a microchip refers to a Radio Frequency Identification (RFID) tag. This wireless technology consists of a tiny radio transmitter which communicates its unique identity to nearby readers using electromagnetic waves. Common uses of the technology include inventory tracking, key fobs to open your car door, automatic payment passes used in toll booths, building access systems, and even payment and ID cards.
Beginning in 2017, a company named Three Square Market located in River Falls, Wisconsin started offering RFID implants to employees—80 of the 250 employees agreed to have the chip installed. The chip is roughly the size of a grain of rice and is implanted under the skin between the thumb and the forefinger. The CEO of Three Square Market said the idea came after a trip to Sweden where he noticed many people having chips implanted to do things like enter secure buildings and book train tickets. The chip is intended to simplify tasks such as assessing the building, logging into the computer, and buying food and drink items in the cafeteria. So far, nearly a third of the company has the chip installed and everyone seems to be enjoying the convenience. Two people have had their chips removed upon leaving the organization.
The company behind the commercially produced, implantable microchip is named VeriChip and was given FDA approval back in 2004 to implant the chip for various purposes. The company claims the chips cannot be counterfeited and advocates for use in the health care industry as well as the private sector. So far, the chip is commonly used for identifying patients whose identity is difficult to establish and the chip is often installed on household pets to attach the owner’s information to the pet if it wonders off.
The privacy concerns associated with the use of implantable RFID chips involves the potential leaking, stealing, or spoofing of information stored on the chip. Although very little information is stored on these chips, usually only a unique identification number, access to that unique number paired with other information can expose the underlying sensitive data. Spoofing is also a real issue—for example, the unique identifier in your credit card may be read by a third-party reader and duplicated to be used without your authorization. Another fear is that many of these supply chain databases which store information about their products RFID movement, may be able to profile consumers based upon where the tag on their products has traveled. Although the tags do not have GPS capability and cannot track location in real time, by comparing where the signals of the RFID chip have been received, you may deduce where the person has been.
Solutions to these concerns include the use of encryption methods such as “one-way hashing” which creates a unique meta-ID that can only be read between two parties. This would mean that the RFID is in a locked state until it receives an exact signal of the same hash value and could then be temporarily unlocked for use of nearby readers. Physical shielding sleeves that block radio signals are also used to store passports and credit cards so that the RFID cannot communicate with a reader until taken out of the sleeve. However, with implantable RFIDs, encryption is obviously the best method of protection.
From a legislative point of view, over 10 states have passed laws prohibiting employers from requiring an implant of any kind. Additionally, around 20 states have laws on the books that deal with regulating the use of RFID. Commonly, the laws state that it shall be unlawful for a person to remotely read a person’s identification using RFID, without that person’s knowledge and prior consent. States like Illinois have made it a felony identity theft crime to possess or transfer a RFID device capable of obtaining personally identifiable information (PII) from a RFID tag, with knowledge that the device will be used by an individual to commit such crime. States like Minnesota, Michigan, and Washington have required that the new enhanced drivers licenses containing RFID tags contain reasonable security measures to protect against unauthorized disclosure of PII.
So far, it appears that RFID chips are treated just like any other sensitive identification card you would have in your wallet. It is illegal for anyone to steal or access the technology without your consent, but there is now a heighted risk of your information being stolen without reasonable security measures in place—it is easier to steal a radio signal you cannot feel than it is to take your wallet or purse off your person. In short, although your personal identification number feels safe implanted beneath the palm of your hand, its signal is susceptible to more danger than ever before.
 Dave Royse, States Just Saying No to Employee Microchipping, LexisNexis (Mar. 13, 2020), https://www.lexisnexis.com/en-us/products/state-net/news/2020/03/13/states-just-saying-no.page.
 Rep. Kahle’s plan to prohibit employers from requiring microchipping for workers in Michigan passes House, Michigan House Republicans (June 24, 2020), http://gophouse.org/rep-kahles-plan-to-make-microchipping-in-michigan-voluntary-for-workers-and-job-providers-passes-house-unanimously/.
 See HB 5672 (June 24, 2020)
 Radio Frequency Identification (RFID), U.S. Food and Drug Administration, https://www.fda.gov/radiation-emitting-products/electromagnetic-compatibility-emc/radio-frequency-identification-rfid.
 See Gavin Phillips, How Does RFID Technology Work?, makeuseof (May 31, 2017), https://www.makeuseof.com/tag/technology-explained-how-do-rfid-tags-work/.
 Rachel Metz, This company embeds microships in its employees, and they love it, MIT Technology Review (Aug. 17, 2018), https://www.technologyreview.com/2018/08/17/140994/this-company-embeds-microchips-in-its-employees-and-they-love-it/.
 John Halamka, The Security Implications of VeriChip Cloning, Journal of the American Medical informatics Association (Nov. 2006), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1656959/.
 See Phillips, supra note 6.
 See Halamka, supra note 10.
 RFID Security and Privacy White Paper, Department of Homeland Security, https://www.dhs.gov/xlibrary/assets/foia/US-VISIT_RFIDattachE.pdf.
 See Radio Frequency Identification (RFID) Privacy State Law Survey, LexisNexis (Nov. 18, 2019), https://advance.lexis.com/api/permalink/ba1e4165-8d6d-41d0-a4e0-648984540d51/?context=1000522.