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Microwaves and the Right to Privacy

In April of this year, we wrote about how technology has changed how law enforcement monitors the use of firearms. http://www.kefferbarnhart.com/Blog/2015/April/Who-is-Listening-Part-2-.aspx. As reported in the Washington Post, Technology is also changing the government’s use of individual ID’s. https://www.washingtonpost.com/news/worldviews/wp/2015/08/14/germans-are-so-scared-of-surveillance-they-microwave-their-id-cards/ (last visited August 16, 2015). In 2010, the German government began embedding microchips in all of their ID’s. Some Germans are concerned enough with the invasion of their right to privacy that they have microwaved or boiled their identification cards so as to incapacitate the embedded microchip. This tactic has caused problems because, under German law, identification cards are government property.

More importantly, the use of this type of technology has not stayed in Germany. In 2005, Congress passed the REAL ID Act; seeking to create a national identification system by intertwining the states’ drivers licensing systems. http://www.cato.org/publications/policy-analysis/real-id-state-state-update?gclid=CP6pg7rerccCFVc7gQod9GIDZQ (last visited August 16, 2015). The Department of Homeland Security has announced that it is working with states to enhance their drivers licenses and identification documents to comply with travel rules under the Western Hemisphere Travel Initiative (WHTI). http://www.dhs.gov/enhanced-drivers-licenses-what-are-they (last visited August 16, 2015). DHS refers to these identifications as “enhanced drivers licenses” (EDLs), which are issued in a secure process, including technology that makes travel easier. The EDLs use radio frequency identification (RFID) through a chip that will signal a system to pull up biographic and biometric information for law enforcement officers. A bar code is available if a signal is not available or cannot be received. According to DHS, the top 39 land ports of entry have RFID technology available to be used.

Indiana’s drivers licenses include two photographs of the driver on the front and two bar codes on the back of the license. In Indiana, it would seem, like Germany, that the government has a property interest in the identification. This issue was addressed by the Seventh Circuit more than twenty years ago, which stated, “[w]hile admittedly a close question, we believe that for purposes of McNally, the BMV has a tangible property right in the surrendered licenses based on these provisions.” Frank v. United States, 914 F.2d 828, 833 (7th Cir. 1990). While obviously a question for the future, would a Hoosier under Indiana law have the ability to disable or disengage that technology if he so chose? Do we have a property or a privacy interest not to be located by RFID technology?

Contact us today if you have questions or believe your constitutional or criminal rights have been violated. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized case. Act now and contact us today at 1-800-NOT-GUILTY or (317) 857-0160.