Human rights advocates and criminal attorneys are both caught in the cross hairs of the debate regarding how to administer justice to individuals accused of a crime while at the same time protecting their human rights.

No matter how heinous the crime, criminal attorneys are aware of the Sixth Amendment of the Bill of Rights which clearly states:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

However, even though the right to representation and trial is granted, criminal attorneys and indeed the entire justice system are grappling with the issue of how to best deal with repeat and violent offenders, leading many to suggest that one part of the solution to the problem is to implant microchips or RFID (radio frequency identification) tags in convicted criminals, in addition to using GPS (global positioning system) tracking devices.

Global Positioning System tracking devices, which work in tandem with aerial satellites, are equipped with a transmitter and receiver. This technology was invented by the U.S. military during the Cold War to mobilize troops and missiles. GPS military products have been very successful over the last year in helping to hunt down and capture many terrorists, seizing them in places that they thought were “safe havens.” Indeed, many have called GPS tracking the wave of the future for law enforcement.

With the introduction of GPS tracking systems in law enforcement, officers have been given the ability to monitor someone’s movement 24 hours a day, seven days a week. Subjects under GPS tracking wear a removable personal tracking unit (PTU) and a non-removable wireless ankle cuff, about the size of a large wristwatch. The ankle cuff and the PTU must always be within a specific proximity of each other. If communication with the cuff is lost, the PTU assumes that the user has abandoned it and a violation is recorded.The PTU acquires its location from the Department of Defense’s GPS satellites, and records this time and location into an Internet-based database system.

This information is communicated back to the authorities and the criminal attorneys in the case. Using a Web browser, authorities are able to look at a detailed map to determine where the person has been. If a violation is detected, for instance, if the person was in a prohibited place, authorities can take action. The rationale for using this system is simple: criminal attorneys know that the more non-violent offenders that are removed from detention facility and put on GPS tracking, the more violent offenders can be locked up and controlled by prisons. In addition, GPS tracking enables probation and parole officers to keep closer tabs on those parolees, who have committed a more heinous crime and pose a greater danger to society.

A criminal attorney may advise a non-violent offender on the benefits of accepting a sentence of house arrest with the stipulation of wearing a GPS monitoring device, for example, a person who has been convicted of a non-violent crime and who is a full-time employee and full-time parent. Using the traditional system, this individual would be sent to prison, resulting in a loss of employment, reduction in taxes, increase in correctional spending, and deterioration in their family structure. However, this person has broken the law and deserves some form of punishment, with GPS tracking, these non-violent offenders can remain employed, continue to pay taxes, and maintain their status as a family member, while at the same time being punished by the restriction in movement.

However the GPS tracking program is not without flaws which has prompted the call to move toward replacing this system with implanted microchips or RFIDs. It is not uncommon for any new technology to be met with resistance. Some criminal attorneys believe that these devices encroach on civil liberties but in fact, no one is forced to use these devices unless they agree to the program. However, since the alternative is incarceration, many opt for GPS tracking.

But the same does not hold true when criminal attorneys are asked to recommend microchip implants or RFID tags. These devices are essentially smart barcodes that replace the familiar lines with a small amount of computer memory, a tiny processing unit and a radio. Information is downloaded into the tag and read off it via radio. At present, proponents of RFID technologies have pointed to its efficiency in supply chain management, agriculture and human health services, improved security and positive results when used in applications such as library collection management. The effectiveness of RFID technology along with heightened security concerns have strengthened the argument in favor of extending its use as a means of controlling criminals. However, criminal attorneys are well aware of the rights that would be infringed upon through the application of microchip implants.

The first obstacle to this proposal has been established through common law precedents. As early as 1891, Justice Gray of the U.S. Supreme Court indicated that “no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” This has been used by many criminal attorney as a basis for their defense strategy. Similar sentiments have been echoed by Justice Cardozo in his famous statement that “every human being of adult years and sound mind has a right to determine what shall be done with his own body.” The right to privacy defined by Justices Gray and Cardozo is a right to bodily integrity.

If a mandate was issued that criminals be implanted with microchips, it would be compelling an invasive procedure. Although microchip insertion through a needle is not complicated surgery, it would nonetheless interfere with bodily integrity. In addition to the invasiveness of the initial surgery for implantation, the continuing presence of the microchip within the individual must also be considered. The implant, in combination with the surgery, represents a substantial permanent intrusion.

In addition, the position of criminal attorneys in regards to the use of implanting microchip devices described above is that it impinges upon various constitutional rights, particularly in the Fourth Amendment. While GPS devices are worn for a specific period of time and then removed, the implications of using RFIDs or microchip implants in the body are far reaching and more difficult to justify.

The Fourth Amendment protects individuals from unreasonable searches and seizures. The general concepts relating to the definition of a search have been related to external examples, such as 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, 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.

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, 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 “in 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.”

Most criminal attorneys will agree that the principles involved for Fourth Amendment claims can be applied to microchip implants. The clearest application will be to the embodiment of the microchip 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, in this case an individual with a criminal record. Scanning of the microchip would be considered as a search.

The first question a criminal attorney and the court would 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. Instead, it is actions relating to the gathering of information from the microchip which apply to the Fourth Amendment. 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.

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 over broad search which impinges on an individual’s privacy rights.

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. In summation, in any form, interrogation of the microchip implant could be considered a search. However, criminal attorneys argue that 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.

Opponents to the use of RFIDs or microchip implants in criminals also cite their vulnerability to data corruption and virus attacks, which was recently discovered by a group of security researchers who infected a Radio Frequency ID tag with a computer virus to show how the technology is vulnerable to malicious hackers. The researchers warn that RFID tags could help mount many different types of attacks on computer systems. There are also a variety of health safety related issues due to the fact that these devices use radio frequencies.

The largest advantage that criminal attorneys have in their argument against the use of RFIDs is the fact that RFID technology is very new. Using them involves complex issues that deal with the safety and security of the information on the chip, which have not yet been solved. For instance, the federal government is currently experimenting with the use of RFID chips in passports. In recent testing conducted by the National Institute of Standards and Technology (NIST) in Morgantown, WV a number of flaws in RFID chips were discovered. Those flaws included smart card readers that couldn’t detect chips, readers that could detect chips but couldn’t read them, and readers that did not know what information to display. In fact, it was discovered by the government testers that some readers were able to read the information on these RFID chips from a distance of up to 30 feet.

Another example of the instability of this technology is that private individuals have found it easy to exploit this security vulnerability and read RFIDs at a distance. At a computer security conference in 2004, a computer programmer demonstrated a program called RFDump. This program enabled anyone with a card reader and a laptop to read data from up to 3 feet away.

However RFID technology is rapidly being developed and investigated for purposes in both state and federal governments. At the same time, the use of GPS technology is being broadened. Criminal attorneys realize the implications of the success of the proposal to implant microchips in criminals could very well pave to a broader application to the general population as well. As stated earlier, if microchip implantation on this level occurs, and a law-abiding citizen discovered they were being monitored, this could be deemed illegal search. The potential for corruption, misuse of information and abuse of power are also genuine concerns in every case.

As the face of crime becomes more complex, there are criminal attorneys who are working to come to terms with the administration of justice and the form it will take. With both the court and prison systems overloaded, under staffed and sorely in need of increased budgets, GPS and RFID systems are being viewed as the best option to maintain order in the society.

Many argue that by virtue of the act committed by the individual, they have lost their right to privacy and in some cases it has been put forth that individuals who commit acts of terror should be denied a certain level of human rights as well. In many cases, the criminal attorneys who defend these individuals have been attacked. Yet, while the United Nations issued the Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, that along with the standards of Geneva Convention are being brought into this debate on the validity of using microchips in criminals as a viable security measure.

At this point in time, for criminal attorneys, the case of whether microchip implantation in criminals violates their human rights hinges upon the amount of rights to privacy that the government affords them, in addition to the pace of development of the RFID microchip technology. However, with the advent of crimes of terror, especially after the deadly attacks of September 11, 2001 in the United States, which increased the demand for methods to protect the society, criminal attorneys face an increasingly daunting task to argue against the use of these devices, particularly when defending an individual who is charged as an enemy of the state.