Constitutional Rights , Human Microchip Implantation & Brain Waves

Constitutional Rights

Devices described above can be said to impinge upon various constitutional rights, depending on the embodiment. Here we focus on the relation of human microchip implantation to the Fourth and the Fifth Amendments.[86] The Fourteenth Amendment will be discussed in conjunction with the impingement upon property rights.

Fourth Amendment

The Fourth Amendment protects individuals from unreasonable searches and seizures. A type of search which has been frequently tested for potential violation of constitutional rights is the use of electronic surveillance. In that instance, a bifurcated framework has been used to analyze which acts of surveillance constitute illegal searches. This approach considers first the implications of the attachment of the surveillance device and second the implications of continual monitoring once a device is in place.[87] These considerations must also take into account the requirements of probable cause and particularity.[88] There must be a definite reason for suspicion necessitating the search, and the search must also be placed within finite limits. In this section, a search will first be defined, then the method of determination of whether or not a search is constitutional will be explained, and finally the applicability to microchip implantation will be explored.

The courts often examine whether or not the activity under surveillance normally has associated with it a legitimate expectation of privacy in making their determinations as to whether or not a “search” (requiring constitutional protection) took place. This factor may be illustrated by a hypothetical surveillance of an individual walking on the sidewalk. Privacy often has two aspects: 1) actual expectations and 2) their reasonableness.[89] Applying these to the hypothetical, just because a pedestrian thinks sidewalk activities are private and precluded from surveillance does not mean that they are. Legally, because of no reasonable expectation of privacy on a sidewalk, observing the pedestrian does not amount to a search for Fourth Amendment purposes.

The same type of question has been asked in litigation over whether or not surveillance of a moving automobile is a search. If a beeper is placed on an automobile for tracking, is it within the realm of public activities and therefore a type of surveillance which is not a search? Courts have answered that question in the affirmative, terming driving an activity associated with a “diminished expectation of privacy,” not a search because “[a] car has little capacity for escaping public scrutiny.”[90] The same reasoning has also been applied to beepers placed on airplanes,[91] and the use of infrared devices to examine the heat content emanating from buildings.[92]

The generalized concepts relating to the definition of a search have been related to external examples of beepers or wiretapping. However, the Fourth Amendment has also been invoked with reference to internal intrusions upon individuals to obtain evidence which could be used against them. Examples include the withdrawal of blood and bodily searches which require surgical procedures or other means to extract substances from the body. In Winston v. Lee,[93] a robber was shot during an escape of the scene of an attempted robbery. Shortly thereafter, a man with a gunshot wound was discovered in the vicinity. To confirm that the suspect was connected with that particular robbery, the police wanted to compel surgery to remove the bullet. Because of the complicated and life-threatening surgery required to remove the bullet, the Supreme Court ruled that the surgery would be an unreasonable search.[94] Alternatively, other decisions have classified these highly intrusive searches as warrantless searches rather than unreasonable ones.[95] Thus, it seems that the courts are unwilling to totally relinquish the power to conduct a highly intrusive search, regardless of the conditions involved.

Arguments have also been made that taking blood samples is another example of an internal search which may be said to implicate the Fourth Amendment, where those samples indicate intoxication.[96] The same reasoning has been suggested as a reason to prevent the collection of blood samples from convicted criminals to obtain DNA for a genetic data bank.[97] However, these arguments have not been successful against the claim that greater restraints on liberties are required for the convicted.

Once it has been established that a search has indeed taken place, it is thereafter unconstitutional only if a valid warrant was not obtained prior to the search. The warrant is evidence that the proposed search has been examined, and considered not to infringe upon the suspect’s rights. The leading case detailing the constitutionality of the search when a warrant is provided is Katz v. United States,[98] which examined the constitutionality of wiretap surveillance by the government. The petitioner had been convicted based on improperly-obtained evidence because the safeguard of first obtaining a search warrant before bugging the phone booth had been ignored. On appeal the court stated that “[i]n the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.”[99]

The principles evolved for Fourth Amendment claims can be applied to microchip implants. The clearest application will be to the embodiment of the device that can read-write and track. Still, read only and read-write devices also implicate Fourth Amendment principles because, once installed, either could be scanned by police to obtain information about the individual. Scanning of the microchip would be considered as a search.

The first question to consider is whether or not a search (worthy of Fourth Amendment protection) took place. Thus, scanning or interrogation of the implanted microchip to obtain information from it is the action to be evaluated. The act of implantation itself does not constitute a search.[100] Rather, it is subsequent actions relating to the garnering of information from the microchip which are of consequence to the Fourth Amendment analysis.

In the case of any of the embodiments, an individual may have an expectation of privacy as to the information on the microchip. However, it would be more difficult to defend that expectation as a justifiable one, if the microchip carried information of medical records on a read-write device.[101] Because the information is vital for the good of society, there is no reasonable expectation of privacy. Proponents of this theory would argue that such information was available and on record already, and that this technology merely increased the speed with which it could be recovered. If these arguments prevail, there would be no search and no Fourth Amendment protection.

However, one court has found that personal information should be kept private and not readily accessible.[102] In a Doe case, this philosophy was validated for medical information by judges who declared that “Doe has a right to privacy (or confidentiality) in his HIV status, because his personal medical condition is a matter that he is normally entitled to keep private.”[103] Therefore, under Doe, retrieval of information from a microchip read-write device is a search when the information retrievable is of a type that is normally protected.

Monitoring a read-write device with tracking capabilities could be defined as a search if the implanted citizen were law-abiding. Because criminals have lesser privacy rights, tracking in their case wouldn’t be termed a search.[104]

Once it has been established that a search has occurred, the Fourth Amendment protections insure that the search is only permissible under certain conditions: that a warrant has been issued and that the search is described with particularity. Even if it is a possibility that blanket warrants could be issued, or that a warrant could be easily obtained, it will be difficult to evade the particularity requirement of the Fourth Amendment with reference to microchip implantation. That requirement is to prevent an overbroad search which impinges on an individual’s privacy rights.[105]

If the embodiment of the device is read only or read-write, the particularity requirement could be satisfied with a warrant. Conversely, if the device was read-write with tracking capabilities, the search would not be defined with particularity, as a person could be monitored at any time, in any place.[106] In summation, in any form, interrogation of the microchip implant can be considered a search under the bifurcated analytical framework. The Fourth Amendment protections to make a search constitutional could conceivably be met by the government when the search involves certain information from read only or read-write devices. However, if the device is used for tracking purposes, it will fail the particularity test and thus violate the Fourth Amendment on the grounds that a valid warrant has not been issued.

Fifth Amendment

The Fifth Amendment provides, in part, that no citizen “shall be compelled in any criminal case to be a witness against himself.”[107] Verbal self-incrimination is commonly understood to be covered by the amendment,[108] but it has also been applied to removal of objects from someone’s body.[109] “[A] person is compelled to be a witness against himself not only when he is compelled to testify, but also when… incriminating evidence is forcibly taken from him by a contrivance of modern science” according to a concurrence by Justice Black.[110]

Non-verbal communications are not as easily categorized. For example, in a case concerning whether or not blood withdrawn from a suspect could be used to prove intoxication, the court commented that “[s]ince the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.”[111] Yet later in the same opinion, Justice Brennan tempered the decision in the following manner: “That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.”[112] Thus, there appears to be some disagreement as to the extent of the reach of the Fifth Amendment’s protection as applied to bodily intrusions. However, a common theme in such cases is that the courts examine the difficulty involved in terms of the level of intrusiveness required to obtain the “non-verbal communication,” to determine whether it is constitutional.

The Fifth Amendment could be applied to the use of microchip implants in humans because it could be a form of self-incrimination where the device has tracking capabilities.[113] Note that the implantation itself would not be incriminating, but the scanning or tracking of the implant could be. The question which arises is whether or not the act of carrying the implant is self-incrimination. According to decisions which require a communicative act such as speech or writing, the implant would not be an example of self-incrimination worthy of Fifth Amendment protection. Yet the carrying of the implant might properly be categorized as a communicative act because the chip would provide for constant communication of location. If the government has the ability to determine where someone is at all times, that information could be used as evidence in the commission of certain crimes. It would be analogous to the situation in which a suspect wore a beeper for surveillance 24 hours a day for the rest of his life.[114] In that instance, it might be most properly characterized as self-incrimination and therefore prohibited by the Fifth Amendment. Conversely, if the implantation were consensual, it could hardly be said to represent self-incrimination because of acquiescence.

Moreover, if tracking or scanning of the microchip is considered merely as a non-verbal communication, it may not qualify for Fifth Amendment immunity if constitutionally obtained. Since the act of scanning or tracking does not involve any life-threatening operation, or serious physical disruption, but rather only the monitoring of an electronic device, it would not be intrusive enough a method to qualify for immunity.

Property Rights

Property rights are protected from governmental deprivation without due process by the Fifth and Fourteenth Amendments.[115] Here, we focus on the latter. To determine what is protected by the due process clauses, it is necessary to understand what is meant by the term “property.” This is constantly refined and expanded by the courts, but basically it refers to a collection of rights held in a particular object.[116] They may be tangible, as in the case of land or possessions, or intangible, as in the case of intellectual property. Property has been defined as “every species of valuable right and interest” which may be protected by the State.[117] Although the concept of one’s own body as one’s property has not been embraced by the courts, there is some precedent for that expansion. The law does not provide an overtly obvious method of insulation from bodily intrusions such as mandatory microchip implantation, but it is argued that novel situations require novel applications and expansions of existing legal concepts.

Here, the current rationale for and against the definition of the body as property will be examined, followed by current indications that the theory should be generally adopted. Last, the application of the concept of the body as property to the use of microchip implantation into humans will be explained.

1. Rationale

As explained, the concept of the human body as property is not generally accepted. One reason is fear that if the body were property, one could sell oneself or a portion thereof to another for profit. The basic rights in property include the right to transfer it as one wishes.[118] However, those fears could be allayed by specific statutes covering and limiting transfers. Even the transfer of land is subject to, e.g., zoning restrictions.[119] Another reason for hesitation to consider the body as property is that it harkens back to slavery.

If the body were recognized as property, it would provide certain advantages. Namely, the Fourteenth Amendment which insures that the individual will not be deprived of property without due process of law could then be invoked against intrusions into an individual’s body. It may be argued however, that the individual is already afforded Fourteenth Amendment protection through the liberty aspect of the amendment.[120] Liberty is generally thought to refer to personal rights in conjunction with torts such as battery, assault and false imprisonment.[121] These may be categorized as external events, ones which are not the doing of the individual himself, but rather the acts of another against the self. Conversely, property rights in one’s own body would cover the acts of the self concerning the self. Therefore the liberty interest does not strictly apply, and the property interest in the self could result in a right distinct from the liberty interest. The importance of this feature will be illustrated below.

Current Indications

Evidence for some situations in which the body has been considered as property, or at least as quasi-property, can be found in statutes and court decisions. For example, individuals can have limited rights with respect to the corpse of another, referred to as quasi-property rights.[122] Surviving spouses often have the ability to determine how to dispose of the dead.[123] Other rights in an individual’s body are defined by the Uniform Anatomical Gift Act (UAGA) which determines how and to whom gifts of transplantable organs can be made subsequent to the death of a donor.[124] Since one of the rights attached to property is the ability to alienate it, the introduction of the UAGA serves as evidence that it is permissible to have property rights in one’s body,[125] though they are statutorily limited.[126]

In York v. Jones, a couple had an embryo cryogenically frozen for future use.[127] Later, they wished to transfer it from an in-vitro fertilization institute in Virginia to another in California. The Virginia institute refused, citing the Cryopreservation agreement signed by the couple which specified only one of three fates for cryopreserved embryos. Interinstitutional transfer was not one agreed upon. The Yorks’ argument, adopted by the court, was that the Cryopreservation Agreement was an admission by the Institute that the Yorks had property rights in addition to contract rights in the embryos.[128] Thus, within the confines of a contract, the court was willing to recognize property rights in an embryo.

In a later dispute over the ownership of frozen embryos, another court was not as willing to go as far.[129] The Davises had seven in-vitro fertilized embryos stored at a clinic for later implantation. Afterwards, in divorce proceedings they disagreed over who should get the embryos. Finding it impossible to call the embryos “persons”, and unwilling to call them “property”, the court compromised by putting them in an “interim category that entitles them to special respect because of their potential for human life.”[130] The rights or duties entailed by the interim category were not further elaborated upon other than to indicate that the interest of the parents was one of ownership (where they had equal weight in determining the fate of the embryos).[131] In both York and Davis, the emphasis was on an embryo outside of the human body. Property rights exerted, where granted, are still external to the human body.

In a third example, external rights were also the issue where a man sued to obtain the monetary gain of the use of his cells to create a profitable cell line.[132] In part of his argument, he claimed that he had property rights in the cells removed from him during the course of his treatment. Because he never agreed that his cells could be used by the researchers to develop a new cell line, he claimed that they had converted his property based on the belief that the cells were still his property (because he had not released them) even after they were removed from his body.[133] The argument had been accepted by the lower court, but was not confirmed by the California Supreme Court. Instead, that court sustained the demurrers of the defendants to the cause of action of conversion, citing that the burden that would be placed on researchers to confirm consent before utilization of human body fluids in research would be too great.[134] Here again, the case focused on the ability of one to define products of his body external to himself as his property.

Applications of Property Law Concepts

Implantation of microchips concerns an internal property interest in the self because placement of the device involves breaking the skin to place a foreign object within the body permanently. It may be likened to the use of an artificial eye or a pace-maker. However, in those cases, the implant is desired. In the case of the microchip, there is only a convenient accounting system and repository for government information. Thus, new questions such as whether or not property rights can be extended to oneself now arise.

If York could be used as a precedent, it would then be possible to extend the right from a frozen embryo removed from the body, to internal bodily organs. If embryos outside an individual’s body are his or her property, why then couldn’t the embryos inside the body also be that individual’s property? From there the conclusion that anything within an individual’s body was the property of that individual, or that the body as a whole is property if its components are, could be reached. York is somewhat different however, because concerns and interests in reproductive freedom enter into disputes over fetuses, embryos and contraception in general.[135] York or Davis or other cases concerning reproductive rights and technologies are therefore not the best models for the microchip, but they are closest in substance.[136] Additionally, the very closest legally applicable statutory precedent is the Uniform Anatomical Gift Act. Unfortunately, as previously stated, because this Act covers intrusions into self only after death, it is not directly applicable either.

As stated previously, in the absence of close precedent, and in the face of emerging technology, it is sometimes necessary to forge new legal concepts to cover the previously unanticipated developments of science. The use of microchip implants in humans is such an instance, wherein the application of novel legal theories is required, because of the novelty and the direness of the implications for humans. The concept of property should be extended to oneself as concerns internal matters to prevent technology from swallowing up the individual.

One important aspect of property is the owner’s right to exclude others from it. It follows that if an individual can be said to have property rights in himself, he can exclude others from invading his body which he controls as his property. Thereafter, if it is recognized that the individual has that right to prevent intrusions into his own body under property law, he can invoke Fourteenth Amendment protection to dissuade others or the government from requiring the placement of foreign objects in his body or at minimum provide adequate compensation.

Those principles can be analogized to the scenario of governmental mandate of microchip implantation. If the government desires to mandate microchip implantation, it must provide just compensation for those implanted. The question would then become how to value this level of intrusion. Compensation required would include money damages for the initial implantation,[137] as well as carrying a foreign substance,[138] difficult calculations indeed. Even if an amount could be calculated, it is unlikely that the government could give its value in cash because the total amount required for compensation of all individuals would be prohibitively high.[139]

Thus, if property interests were recognized in self, the compensation required by each individual from the government to implant the chip in each individual would be very great. The renumerative aspects of the program would effectively make it difficult to uniformly mandate the implantation of the microchip.[140] To overcome this obstacle, the government might insist on some form of nonmonetary compensation. For example, a tax break, an additional legal holiday or some other compensatory program might be invoked which did not involve an actual exchange of money on the part of the government.

In summation, property rights in self should be recognized in the case of mandated microchip implantation.[141] This would ensure that individuals receive compensation for their inconvenience, though the government may provide nonmonetary compensation which would be less satisfactory.


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Posted on September 16, 2010, in Group Stalking, Human Experimentation, Psychiatric Reprisal, Synthetic Telepathy and tagged , , , . Bookmark the permalink. Leave a comment.

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