BILL ANALYSIS
SB 362
Page 1
SENATE THIRD READING
SB 362 (Simitian)
As Amended June 27, 2007
Majority vote
SENATE VOTE :25-11
JUDICIARY 10-0
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|Ayes:|Jones, Berryhill, Duvall, | | |
| |Evans, Berg, Keene, | | |
| |Krekorian, Laird, Levine, | | |
| |Lieber | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Prohibits a person from requiring, coercing, or
compelling another person to undergo a subcutaneous (under the
skin) implant of an identification device that transmits
personal information. Specifically, this bill :
1)Provides that a person shall not require, coerce, or compel
any other individual to undergo the subcutaneous implanting of
an identification device. Defines "require, coerce, or
compel" to include physical violence, threat, intimidation,
retaliation, the conditioning of any private or public benefit
or care on consent to implantation, including employment,
promotion, or employment benefit, or by any means that causes
a reasonable person of ordinary susceptibilities to acquiesce
to implantation when he/she would not otherwise do so.
2)Defines an "identification device" as any item, device,
application, or product that is passively or actively capable
of transmitting personal information, including, but not
limited to, devices using radio frequency technology.
3)Provides that any person who violates the above provision may
be assessed an initial civil penalty of up to $10,000 and
$1,000 for each day that the implant remains in place.
Provides further that a person who is implanted with a
subcutaneous device in violation of this bill may, subject to
appropriate statute of limitations, bring a civil action for
actual damages, compensatory damages, punitive damages,
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injunctive relief, or any appropriate combination thereof.
4)Provides that this bill shall not in any way modify existing
statutory or case law regarding the rights of parents or
guardians, the rights of children or minors, or the rights of
dependent adults.
FISCAL EFFECT : None
COMMENTS : This bill is one of several bills introduced by this
author that seek to prohibit, limit, or regulate the use of
radio frequency identification devices (RFIDs) technology in
various contexts. This bill would prohibit any person from
requiring, coercing, or compelling any other person to undergo a
subcutaneous implant of any device that transmits that person's
personal information remotely. Although the language of this
bill specifically references RFIDs, it is apparently meant to
apply to the implantation of any device that transmits personal
information, whether by radio waves or otherwise.
According to author, this bill is needed because subcutaneous
"RFID-enabled identification devices have been developed and are
being marketed in the U.S. and abroad." One company, VeriChip
Corporation, has already received approval from the United
States Food and Drug Administration (FDA) for human use (such
devices can already be implanted in pets). Even VeriChip, as
the author points out, has indicated its general support for
measures that will prevent the forced implantation of such
technology in human beings.
This bill would provide that no person may "require, coerce, or
compel" another person to undergo a subcutaneous implant of an
RFID or any other identification device that transmits personal
information. This bill defines "require, coerce, or compel" to
mean not only using physical force, but also using other forms
of intimidation or coercion, such as making acquiescence to an
implant a condition of employment or some private or public
benefit. In short, this bill prohibits using any means that
would cause a reasonable person of ordinary sensibilities to
consent to an implantation when he/she would not do so
otherwise.
Despite the jargon-laden language sometimes used by both
proponents and opponents, the basic outline of how RFIDs and
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related technologies work is fairly easy to understand. RFID
"tags" can be embedded into objects, including documents,
clothing, and, of course, under people's skin. The tag
typically consists of a microchip (that stores information) and
one or more antennae. Remote "readers" can read this tag via
radio waves. The reader constantly emits radio signals. As a
person or object with an RFID tag moves near the reader, the
distance varies depending upon the device, the antennae pick up
the signal and transmit the information stored on the microchip
to the reader. (Some RFID tags are "passive," which means that
they can only be activated by the radio signal; others are
"active," which means that they can actively search out readers
in the area.) The reader then can transmit this information to
a computer database.
In some ways, RFID technology is merely a higher-tech version of
bar code and magnetic strip scanning. However, scanning
requires direct contact between the scanner and the stored
information (or at least the magnetic strip or barcode must be
in the direct line of sight of a laser). RFID readers, on the
other hand, can read the information stored on the RFID tag
remotely. With existing technology, the reader's capacity may
only be about an inch or several feet. Experts disagree on the
potential range of RFID readers in the future. But most agree
that the current technology typically only works at ranges of a
few inches, though some devices may have ranges up to thirty
feet. However, the fact that RFID tags can be read at any
distance creates the possibility that information stored on an
identification document, or a chip buried beneath the skin, can
be read without the holder's knowledge or consent.
Thus far, RFID technology has only been used in identification
cards or to track inventory. However, VeriChip Corporation
recently received FDA approval for an RFID device that can be
implanted subcutaneously. According to documents filed by
VeriChip with the U.S. Securities and Exchange Commission, its
implantable microchip is part of its broader "VeriMed System."
Although VeriChip suggested that the chip could potentially have
diverse applications, it would primarily be of use to emergency
room personnel and other medical first responders for accessing
the medical histories of certain incommunicative patients. For
example, the chip might be appropriate for a person with special
but not readily apparent medical needs, or for a person who
suffered from some form of dementia and could not be relied upon
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to provide reliable information to medical personnel.
Despite these potentially life-saving uses, few would disagree
that forcing an individual to undergo a subcutaneous implant of
any identification device so violates common sense notions of
personal privacy and bodily integrity that it should not be
permitted. Indeed, to the extent that this bill makes it
unlawful to physically force another person to undergo an
implant against his/her will, it is undoubtedly duplicative of
the existing law of criminal and civil battery. However, the
bill would sensibly go beyond this existing law by prohibiting
and making actionable lesser forms of coercion, such as
conditioning employment or some other benefit on the willingness
to undergo a subcutaneous implant. Not surprisingly, there is
no formal opposition to the bill on this point. As noted above,
even the manufacturer has publicly acknowledged that
implantation should only be voluntary.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0001644