When Privacy Perishes from a Place Inside:

The Right to Privacy in a World with Advanced Implant Technology



        Francesca Cedor




3405.984.357.4999 found.  Identification:  Gary James Feldmen.  Sex:  Male.  Date of Birth: 06/21/2190.  Height:  5'10".  Weight: 210 pounds.  Address:  251 W. Green Street.  Westwinfield, NY.  Location at 03:50am 11/05/2220:   Walking towards Vic's Waffle House with gun and large bag.  Brain activity/Stream of Consciousness:  "can't get caught...they won't get me...freezing out here, they're probably all asleep...at least they have a place to sleep...so cold...the money will do me good...just can't get caught"  Conclusion:  Robbery attempt in progress.


Input:  <001 Freeze Legs> <002-1 Relax Muscles> <002-2 Sensor Drowsy>

3405.984.357.4999 found.  Identification:  Gary James Feldmen.  Sex:  Male.  Date of Birth: 06/21/2190.  Height:  5'10".  Weight: 210 pounds.  Address:  251 W. Green Street.  Westwinfield, NY.  Location at 03:53am 11/05/2220:  Lying on sidewalk, face down, outside Vic's Waffle House.  Brain activity/Stream of Consciousness:  "************"  Conclusion:  Asleep.



It's difficult to imagine living in a world where a single person can target and monitor everybody else's location, second by second conduct, and even the thoughts they have "hidden" in their brains.   Perhaps not.   Baby monitors already allow parents to listen in on their napping toddlers from across the house.  Web surfers might remember the DotComGuy craze in 2000, where anybody with an internet connection could view live web cameras to see a complete stranger's second by second activities.[1]  Finally, hypnotists can delve into clients' minds to uncover past thoughts and feelings, while lie detector machines can somewhat accurately determine whether or not a person states the truth.  The latter two examples involve situations where the observed person most likely gives consent to be observed by the other person.  For example, clients voluntarily seek help from hypnotists because they want to solve a problem they are experiencing.  Likewise, DotComGuy willingly agreed to broadcast a year of his life to the entire world for almost $100,000.[2]  Therefore, it may be more accurate to propose that persons who enjoy privacy rights would not want to imagine, much less live in, a world where they would suffer a complete loss of privacy without having given their consent. 

The following account discusses various forms of surveillance, and explores the likelihood of implant technology that would allow individuals to locate and identify other persons, read their minds, and perhaps even change their conduct.  Subsequently, this paper raises both the positive and negative consequences associated with implant technology   Finally, the analysis will focus more intently on the future of the right to privacy in a world of such technology.


Surveillance:  When Did I Agree to This?


Wire-tapping, video surveillance, and email monitoring are just a few methods of surveillance used by both governmental and private organizations to "'keep us in line,' monitor our performance, gather knowledge or evidence about us, assess deviations, and, if necessary, exact penalties."[3]   Here, individuals feel much like the toddler monitored by her parents.  The toddler certainly doesn't give her parents consent to listen to her every twitch and giggle.  However, one might argue that the toddler doesn't mind because she is probably not aware of the monitoring device.  Another possible argument is that an implied consent exists because she's not yet old enough to understand what the monitor does, and that she would consent if she knew that the monitor contributed to her health and safety.   

Moreover, there is something special about the relationship between parent and child that would override the need for the toddler's consent.  Most parents care for their children and want to make sure that they are healthy and happy.  A monitoring device helps parents determine when their child is resting or playing peacefully, when he or she is fussing, and when something goes wrong.  Since the monitor is like a walkie-talkie, parents are free to attend to other activities in different rooms throughout the house.  Therefore, parents use the monitor because it is a convenient way to make sure that their children are safe and behaving while they get other things done.  

Big Brother would no doubt argue the same.  As aforementioned, the United States government conducts and permits monitoring and surveillance in various forms.  Admittedly, much of this technology deters and prevents crime and misconduct.  For example, video and internet surveillance in the workplace protects employers from liability for the acts of their employees.[4]  Employers can monitor their employees' internet activity and block curious eyes from obscene websites.[5]  Furthermore, surveillance technology contributes to the collection of evidence to prove whether someone committed a crime.  Therefore, Big Brother could simply say that surveillance is essential to U.S. citizens' health, safety, and protection.  Moreover, electronic surveillance, whether by email or video camera, is more accurate and more convenient than hiring extra security and police officers.  Government surveillance provides Big Brother with a convenient way to make sure its citizens are safe and behaving while he gets other things done.

Implant Technology:  Big Brother Takes a Step Inside

Government and private party use of surveillance can go frighteningly further. New technologies could enable government agencies and private parties to more easily identify persons, track persons, control others' conduct, and essentially control others' minds.  One could accomplish these objectives by implanting an electronic device somewhere inside an individual's person.  This device could include all of the information on a person's social security card, driver's license, and other government documents.  A single person could manipulate the implant from thousands of miles away, using a computer that could update the information.  As explained below, the manufacture and use of this implant model falls within the limits of modern technology.  Taken further, the device could be surgically implanted in the individual's brain.  Here, manipulation of the implant could let the person behind the computer detect the location of the implanted individual, determine his present thoughts, and possibly trick his brain into changing the person's thoughts and conduct.  The development of this more advanced implant model is not likely to come to fruition in the next twenty years, but may or may not become possible in the more distant future.

Besides the constitutional issues analyzed below, this technology could facilitate conduct resulting in distorted and misleading liabilities, especially when used by private parties.  One can recall contemporary situations where a person manipulates another person to commit a crime that benefits the former person and devastates the latter, leaving the latter person with the liability for his or her actions.  For example, mind drugs wildly impair individuals' inhibitions and cognizance, while some forms of religion can effectuate situations where its obedient members do not realize that their actions are criminal.  Fortunately, neither the government nor private parties have used actual brain implants to accomplish these objectives.  Nevertheless, advances towards the planning and manufacture of the physical technology itself have already been in progress. 

Right now, developments towards the proposed technology have begun in three separate forms: identification chips, tracking chips, and mind control technology.  In terms of identification, the FDA has already approved VeriChip, an implantable identification chip.[6]  Established in 1993, Applied Digital Solutions (ADS) is an advanced digital technology development company that provides security monitoring systems, security-related data collection, value-added data intelligence, and complex data delivery systems to everybody from the government to consumers. ADS promotes VeriChip, one of its latest inventions, as "a universal means of identification."[8]  VeriChip is an energized microchip, inserted just under the skin on the underside part of an individual's upper arm, that transmits its information when activated by a VeriChip reader.[9]

ADS also owns Digital Angel, which specializes in consumer safety and location systems.[10]  Technology developed by Digital Angel can "pinpoint the location of people, pets and objects. In addition, these systems enable consumers and commercial customers to find out quickly if there's a problem so that immediate action can be taken."[11]  In addition to its primarily external devices, this branch of ADS develops implantable microchips that trace and monitor pets and livestock.[12]  It's only a matter of time until Digital Angel extends this device to humans, as was VeriChip.


"Imagine a voice in your head whispering, 'Turn right.' And if you did, the flavor of luxurious dark chocolate would flood your empty mouth."[13]


                  Finally, perhaps the most intriguing of these three technologies is the development of mind control technology.  Scientists have already trained rats to respond to signals from a human-operated, computer command center up to 500 yards away.[14]  New York and Pennsylvania universities have conducted studies whereby a group of scientists led by Sanjiv Talwar implanted stimulating electrodes into the medial forebrain bundles and somatosensory cortical whisker representations of five rats.[15]  In other words, the scientists implanted the rats' brains.  The rats then learned the appropriate responses to stimuli sent from the computer command center to the implanted electrodes.[16]  This "virtual cue and virtual reward" technique is essentially a training or conditioning process.[17]  However, if the brain implant technology were combined with the following conceptualized yet presently unrealized non-implant technologies, mind control has some real potential.

Recorded patents for various forms of electronic mind control have existed since 1976.  Robert Malech, an inventor from Plainview, NY invented a device that would sense "brain waves at a position remote from a subject whereby electromagnetic signals of different frequencies are simultaneously transmitted to the brain of the subject in which the signals interfere with one another to yield a waveform which is modulated by the subject's brain waves."[18]  The brain wave activity is then re-transmitted to a receiver that displays the brain activity.  Finally, the waveform can then be used to "produce a compensating signal which is transmitted back to the brain to effect a desired change in electrical activity therein."[19]  Essentially, this technology allows anybody that can read the brain wave device to manipulate the person's brain.  Furthermore, this technology would allow for mind control without an actual physical implant.

In 1995, Hendricus Loos devised a similar brain-manipulating technology, once again without necessity for an implant chip.  Here a weak, externally applied magnetic field influences the nervous system.  The general public could use this device as "an aid to relaxation, sleep, or arousal," while, clinical professionals could use the device to control patients' "tremors, seizures, and emotional disorders."[20]  Advanced further, this technology could potentially replace the date rape drug and other mind control drugs, all of which make an actual implant unnecessary for the purposes of mind control.  One distinguishing factor between such non-implant methods and actual brain implants is permanency.  Drugs wear off and need to be retaken, while waveforms and magnetic fields can be evaded.  In contrast, brain implants are more likely to stay put and be effective for a very long time.  For example, VeriChip already has an estimated life expectancy of up to 20 years.[21]  Surgical procedures for the removal of an implant are also expensive, inconvenient, and particularly ineffective if the individual was implanted at birth and therefore unaware of its presence.

So, what happens when all of the above technologies combine into one powerful little chip that does it all?  As neurologists become more acquainted with how the brain codes thought, this single implantable microchip, inserted directly into the human brain could identify, locate, and even detect and manipulate brain activity from extremely long distances.  Such advances may take a long time to fully develop, but the far future may present a society where a single individual at a computer command center may be able to detect the location of any implanted individual, determine his present thoughts, and possibly trick his brain into changing its course of thought and conduct. 


A Brief Clarification for Those in Doubt

One may wonder how a society so strongly in favor of and accustomed to the right to privacy could ever sit back and let themselves be implanted.    However, this is not a difficult mental exercise when considering what a government will do and what a society will tolerate under circumstances of intense fear.  The September 11th attacks bring to mind a very recent example where threats to national security resulted in increased airport security that decreased individuals' privacy.  In the aftermath of the attacks, Congress passed the USA Patriot Act.  According to this Act, Congress gives federal officials enhanced authority to track and intercept telephone, face-to-face, and computer communications, for law enforcement and intelligence gathering purposes.[22]   Finally, as discussed above, various forms of electronic surveillance have already taken away privacy protections.  There is no reason why this trend would discontinue.  Assuming that widespread use of the technology does come to fruition, the following section explores both the advantages and disadvantages of this scary, yet intriguing, technology.


I've Lost My Mind...to the Government..  But, Big Brother (and My Mother!) Know where I Am:  Advantages and Disadvantages of Implant Technology


Theoretically, if everybody knows that they have been implanted at birth, the paranoia would be far too great for most people to voluntarily commit a crime, much less do something that would embarrass themselves.  One possible result would be that nobody would commit crimes.  The implant would act as a deterrent.  Not only would Big Brother be watching you; he's watching from inside you - your thoughts, your whereabouts, where you are headed, maybe even your dreams at night.  Of course there will be those individuals who, cleverly or foolishly depending on one's perspective, will try to commit crime anyway.  In such instances, brain implant technology could stop the attempted crime before it's fully committed.  

It is important to note that before brain implant monitoring could ever thwart attempted crimes or act as an effective deterrent, the system requires someone behind the monitor to constantly check every individual's conduct.  Otherwise, the human monitor would scan randomly, focusing attention on finding individuals in which information from other sources reveal a connection with criminal activity in progress.  Moreover, such a system poses the threat of more frequent and more intense monitoring of particular persons that have caused trouble before.  A situation similar to random implant scanning illustrates how random surveillance fails to be an effective deterrent in the first place.  In the late 1990s, the presence of video cameras in Pennsylvania school buses failed to deter students' misconduct because the students figured out that the chances of the tape actually being in the camera of the particular bus they rode in a given day were slim.[23]  Several school buses shared a videotape and bus drivers periodically passed the tape among themselves.  If grade school children can be this sophisticated, it is likely that adults who have been told that their implants' feedback is constantly monitored, may be able to figure out that such monitoring is not very likely. 

Cost is another, if not more important, obstacle to an around-the-clock implant monitoring system.  The public school chose to buy only one tape instead of twenty because buying twenty tapes would have been twenty times more expensive.  On a much grander scale, wire-tapping is not continuous because the labor costs of cops listening to phones would be outrageously expensive if enough cops were employed to listen to all or even most phones around the clock. 

However, all the monitoring body needs to do to solve both continuity and cost problems is to add further computerized components to the implant reader or monitoring device itself.  Computers do not charge labor the same way individuals do, and would therefore cost a lot less to employ.  For example, computers could constantly scan implant output and alert human monitors via a siren or bell when it determines that a crime is in progress.   There is yet another obstacle here because a computer may not be able to detect certain human behavior as criminal, and may accidentally alert the human monitor to behavior that it does not understand.  Here, implanted individuals could evade detection by the computerized monitor by disguising their behavior.  Advances in artificial intelligence (AI) could overcome this obstacle.  In contrast to a static computer that scans information and looks for patterns, an AI computer designed for implant monitoring can be dynamic to the extent that it can sense adaptations in behavior and detect new forms of criminal conduct designed to trick the system.  As long as the AI computer does not become advanced enough to realize that it should be getting paid for its work, cost and continuity obstacles diminish.  Granted, there still may be lots of criminal activity going on at the same time, and the system will need many computers to detect criminal behavior as well as several humans to respond to and further investigate what computers detect.  Yet, if individuals at this point know that they are in fact constantly monitored at both a computer level and a human level, the system is likely to significantly reduce criminal activity.

Perhaps a more interesting situation involves implant technology in a world where nobody knows that they have been implanted.   Would the implantees ever find out?  What happens when they do find out?  This situation once again parallels the monitored toddler.  In this context, however, the toddler eventually comes to view the baby monitor as both an affliction and an advantage.  At some point she will be able to figure out that mommy miraculously enters the room when she cries and when she plays when she is supposed to be asleep.  The really clever toddler will figure out that mommy only has this special power when she brings the white box into the room and places it up high out of reach.  Even those toddlers who cannot figure this out will try to figure out ways around the system so that they can play even when they are supposed to be asleep.  In other words, the average toddler will know that something is up even if the source remains unknown.  Consequently, she will play with her stuffed animals really quietly under the covers, or perhaps cry more often when she desires more attention.  Similarly, the implanted individual would most likely catch on and try to adjust his behavior accordingly.

Therefore, one also has to consider that with the rise of this new technology would undoubtedly be a shortly following, if not simultaneous, counter-technology.  In other words, privacy-seeking individuals would try to come up with some kind of block to both the computer and the alerted human reading the information from the other end.   One possible technique would be to wear some kind of helmet or take some kind of drug that blocks or scrambles the outgoing information so that the microchip can no longer be detected.  The computer may have been able to see the implantee take the drug or put on the helmet, but now it has no more tracking capabilities.  Likewise, implanted individuals may try to build implant transmission barriers out of some material that the transmitters cannot get through.  Once in a room made out of such a material, someone could surgically remove the implant.  Undoubtedly, any of the above incidents would cause the computer to set off a whole host of alarms and bells, but it would be too late for the computer and the alerted human monitor to do anything about it.    Nevertheless, the implantee would have been lucky to get away with any of these activities in the first place, seeing as an AI computer would have been able to read the implantee's thoughts in advance and deter him from trying to block outgoing microchip information. 

The very brave implanted individual might try to remove the implant himself without a barrier.  Besides the drawbacks already described with respect to the drug or helmet method, removal of an implant would be extremely dangerous.  If the implant were merely lodged in the individual's arm or leg, some people probably wouldn't mind cutting out the implant or even amputating the entire limb.  Privacy's worth at least an arm or a leg.  However, the implant would be most effectively located in the individual's brain.  Privacy will be useless to the implantee if he cuts off his head.  Once again, a though-reading AI computer could deter such conduct before it happens, especially if it were programmed to remedy certain situations without having to alert the human monitor.  Unless an implanted individual lost a limb truly by accident, the AI computer would be able to determine the individual's intent to remove the implant in his thoughts even if his outward conduct made it look like he tripped and fell on the axe that sliced off his upper arm.

Consequently, the implantee is greatly disadvantaged in the sense that he cannot hide his behavior as well as the toddler.  It would be difficult for the implantee to control his thoughts to the extent to which he could disguise a crime in the form of something that does not look like a crime.  With current surveillance technology, a murderer might be able to escape liability for a videotaped murder by staging an accident where a jury would determine that the death was actually caused by accident.[24]  Here, the murderer could hit a pedestrian purposely while making it look like he was swerving because he thought he saw a cat.[25]  However, if the murderer had been implanted with the identifying, tracking, and mind-reading device, the AI computer would be able to find out that the murderer intended to kill the pedestrian by reading his thoughts.  The alerted human monitor could then, with the help of the AI computer, piece together bits of information that had been previously recorded in the database.  For example, a few keystrokes reveal that the murderer caught his wife with the pedestrian while viewing his wife's implant output. 

As just suggested, private individuals may have access to their own tracking and mind reading systems.  One must keep in mind, that if the public somehow gains access to this technology, everyone would be able to track each other.  The Feds could be watching our every moment while we watch them at the same time.  This would present a situation similar to David Brin's Transparent Society, where advanced video camera technology is accessible to everyone and enables everybody to watch everybody else.[26]  Brin suggests that this would be a very positive society.  Professor David D. Friedman, however, points out flaws in terms of control of the system and with respect to misuse of the data.[27]  Furthermore, Friedman suggests that individuals, knowing they may be watched at any moment, can adapt their behavior by keeping tight control over what they say and how they conduct themselves.[28]  It logically follows, therefore, that the society is still somewhat opaque.  In Brin's transparent society, individuals still have a place to hide - their own minds.  In contrast, individuals living in a society with widespread use of brain implants have nowhere to hide.  Everything is accessible.  The advanced implant world is much closer to a truly transparent society.[29]  Nevertheless, the implant society still has the problems of control and misuse of data.  For example, society wouldn't have to worry about identity theft as long as nobody tampers with the information in the database.  Today's internet hackers could be tomorrow's implant database hackers.  If control is not an issue and access remains unregulated, somebody could be watching the person tampering with the information.  It all depends on whom the human monitors trust.  On the other hand, such an advanced monitoring system could include an equally advanced security system that allows access though use of biometrics.  Control and abuse aside, a truly transparent society would be a world of utmost truth.

Even in an "unflawed" truly transparent implant society, most present-day individuals would not be too impressed with its advantages, and would be quick to point out its disadvantages.  The following example illustrates one of the least troublesome of situations that could happen in an implant society:  Imagine being a 19-year-old woman on a date with your current beau.  As an evening kiss begins to get more and more intense, you suddenly hear a buzzing sound and feel yourself pulled away from the young man you are with.  You tell him that you had a wonderful evening and that itπs time you go home.  Confused and bewildered, the young man doesn't realize that your mother just tracked your whereabouts, saw what was happening, and sent special waves to the implanted chip in your head that caused you to mentally and physically respond by returning home.   Not only does the 19-year-old woman's implant result in an uncomfortable degree of lack of privacy, but it strips her from being able to make a personal choice.   As discussed below, the right to privacy involves an element of control.  For example, adults like the 19 year old woman above have a fundamental right to make personal choices and decisions, albeit the ensuing conduct must be legal according to the government's laws and regulations.  Therefore individual privacy and personal choice are just two facets of a variety of protections that society believes fall under the fundamental right to privacy.


The Penumbra Puzzle:  Definitions and Interpretations of Privacy


                  Defining the right to privacy is a difficult task.  Various scholars have defined privacy in its broadest terms as informational (or access-control) privacy and control.[30]  More specifically, Deckle McLean placed privacy into four categories:  access-control privacy, room to grow privacy, privacy as safety valve, and privacy as respect.[31]  The two types of privacy most relevant to brain implant technology are access-control and respect privacy.  Access-control privacy is essentially informational privacy, the protection of access to information about a person.[32]  Such information encompasses everything collected in bank records, consumer credit records, employment records, and medical records to investigation reports, intelligence test scores, and sale of mailing lists.[33]  In contrast, respect privacy involves events or circumstances that insult the person by bringing shame or embarrassment to the person.[34]  Some threats of access-control privacy are also threats to respect privacy.[35]  For example, bugs and wiretaps both collect personal information that may cause a person to feel embarrassment.[36] 

                  Interpreted a different way, privacy is a societal license whereby a person or persons can act legitimately without disclosure and accountability to others.[37]  This license "exempts a category of acts (including thoughts and emotions) from communal, public, and governmental scrutiny."[38]  Such exemptions include acts inside the home, bedroom, and bathroom.  Even DotComGuy could escape to his bathroom, the only room without a live webcamera.  Furthermore, privacy includes an element of control.  Control deals with an individual's "decisional realm."[39]  Here, the individual is entitled to make certain choices that the government cannot make for him, such as the choice to use contraception and the right to bear and beget a child.[40]


Of Ages Past and Present:  The Development of the Constitutional Right to Privacy


                  While the United States Supreme Court recognizes a fundamental right to privacy, this right is not explicitly stated in the Constitution.  Rather, the Court has found an implicit right underlying several amendments of the Bill of Rights.  To make matters even more obscure, the Court explains that it derived a general right to privacy "from 'penumbras' and 'emanations' of the specifically detailed guarantees of the Bill of Rights."[41]  The freedom of speech, protection from unreasonable searches and seizures, and the right to due process, of the First, Fourth, and, Fifth amendments respectively, are among the specifically detailed guarantees from which the right of privacy has been derived.[42]

The development of this right has an engaging, albeit brief, history.  The framers of the Constitution embraced an enlightenment philosophy that formed in reaction to a "prior era of law, based on the combined rule of monarch and church."[43]  Since the ultimate purpose of the law had been to punish all sin, the church and the state worked closely together to achieve that end.[44]  As a result, "laws governed many aspects of personal life, including sexuality and personal belief."[45]  New thinking about the law that arose from the enlightenment recognized the rights of the individual and the need for limits on government authority.[46]  Thomas Jefferson and the other framers of the Constitution expanded on these notions of enlightenment.[47]  Nevertheless, "[t]he extrapolation of a legal right to privacy from common law cases, from newly fashioned arguments and ultimately from the Constitution took place late in the long development of legal individual rights, a process that was itself an indication of the growing value accorded to individual dignity and liberty."[48]  The evolution of this late addition to individual legal rights took place several generations after the United States had already recognized the freedoms of speech, association, and religion.[49]

                  In terms of privacy, early United States Supreme Court cases reduced the value of the Bill of Rights, especially the Fourth Amendment.[50]  By 1890, Samuel Warren and Louis Brandeis believed that the common law of their time still hadn't developed sufficient privacy rights, so they wrote a law review article in which they argued that it was time for the law to "grow to meet the demands of society" in light of changing social circumstances.[51]  Warren and Brandeis advocated the recognition of "the right to be let alone."[52]  Subsequent case law agreed, and social values with respect to privacy began to change.  For example, in Boyd v. United States, the Supreme Court recognized that the Fourth and Fifth Amendments "apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life.  It is not the breaking of his doors, and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property."[53]  Likewise, the Court in Watkins v. Unites States said that "Congressional power to expose 'cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of the individuals.'"[54]

                  From the "1950s to the 1970s, the Supreme Court announced the premise that some decisions are so personal that a constitutional standard of privacy requires that they be reserved to the individual."[55]  In 1965, the Court in Griswold v. Connecticut held "that a privacy right protecting the body and body-related matters from government invasion was implied by the First, Third, Fourth, Fifth, and Ninth Amendment."[56]  The Court really didn't have much of a choice.  The public knew where its policy was going, common law just had to catch up.  "[T]he liberal era of the 1960s and 1970s included demands by many groups that the government and institutions of society learn to respect personal decisions and make room for greater social diversity."[57]  While many individuals encouraged the court's expansion of rights and private choice, others concluded that the "corollary social responsibilities and commitments to the common good were neglected, with negative consequences such as the deterioration of public safety and public health."[58]  The latter individuals viewed the "American society after 1960 [as having] entered an era of growing individualism and neglect of the common good; expressive individualism (of the counter-cultural variety) was followed by instrumental individualism..."[59]


A World of Remote-Controlled Rats and Toddlers:  The Inadequacy of Current Law


At present, US courts continue to confirm public policy in favor of individual privacy rights.  In the advanced implant world, however, not only will current privacy laws be irrelevant, but individuals will have to either develop new notions of privacy or give up the right altogether.  The framers of the Constitution could not have foreseen technologies as advanced as the proposed brain implant, much less the impact this technology would have on the Bill of Rights. As aforementioned, so many amendments are involved in the right to privacy that brain implant technology would render substantial portions of the Bill of Rights obsolete. 

Before the above situation can be considered, however, the existence of implanted individuals in a society with privacy rights would have to exist simultaneously.  To get to this point, one would have to assume that citizens would allow the government to implant them in the first place, or else the government would have to force implant procedures upon them.  As above-mentioned, it would take an immense national security crisis for this situation to happen.  Another possibility would be for the government to start implanting babies in hospitals shortly after birth.  Here, the government would need to consider that some mothers, particularly Amish women, choose to have their children by natural birth in their own homes.  This would present obvious regulation problems.  Finally, the government could implement the patented external technologies that have not yet been realized.  Despite the method or methods are followed, it is possible that at some point all or most citizens would either be implanted, monitored by use of external technologies, or perhaps even both.

Aside from the option of obtaining citizenship elsewhere, future citizens may decide to redraft several amendments of the Bill of Rights.  It is difficult to comprehend what kind of views and policies this kind of society would hold dear, but perhaps future citizens could find some way of incorporating the right to privacy.  For example, the government could agree to regulate the abuse of implant technology.  Laws could impose strict penalties on intruders and invasive public authorities.[60]  Along the same vein, stalking victims could bring suit against their stalkers.  However, stalking laws may also have to change.  A victim from today's society could assert invasion of privacy by showing that (1) "the stalker intentionally interfered with his or her interest in solitude or seclusion in a manner that would be substantially offensive or objectionable to a reasonable person," and (2) that the victim "was entitled to privacy at the time and place where the intrusion occurred."[61]  If these requirements persist, the victim's proof burden would depend on how an implant society defines "privacy."  It is arguable that an implantee has no expectation of privacy at any time or any place. 

Moreover, an implanted individual would never really be alone.  Nevertheless, a distinction could be made between ordinary or commonplace implant surveillance and substantially offensive or objectionable implant surveillance.  For example, monitoring a close family member's voyage across dangerous waters could be viewed as a justifiable surveillance, while reading an individual's mind for the purposes of torture or torment would be offensive or objectionable.  The victim, of course, would first have to figure out that an intrusion is occurring and then face the task of identifying the intruder.  Fortunately for the victim, the AI computer may have viewed the stalker intruding on the victim.

As discussed earlier, the AI computer would conduct most of the monitoring.  As a result, many of the implant monitoring regulations would need to address how the computer monitors activity.  For example, the implant society would need to enact privacy laws that specify how the computers must be programmed, the narrow circumstances under which it can alert the human monitor, and perhaps even more restricted situations where the computer itself can arrest or even change a citizen's activity.  In addition to regulating the computer's monitoring, the government would have to enforce rules concerning who can respond to the situations that causes the computer's alarm to go off, and who can simply read the implant monitoring device for any reason at all.  Here, there could be limits as to the number of people employed by the monitoring agency, specific procedures humans can take while monitoring, and specific liabilities for monitoring actions that cause harm to the implanted individuals.

Another way to preserve some level of privacy would be for the government to mandate whomever controls the database connected to particular person's implant to send feedback to any individual whose private files, conduct, or thoughts have been looked into.[62]  Perhaps an automatic wave could be sent back to the individual's implant and produce a buzzing sensation or beeping sound so as to let the implantee know that his or her implant has been activated.  This might be difficult to enforce if the AI computer is constantly monitoring because it would send a constant alarm to the individual.  Nevertheless, this method may be useful when a human is using the implant reader to collect information.

The legal system may also need to rethink the collection and admission of evidence.  At present, a criminal defendant may file a motion to compel the prosecution to disclose all records of electronic surveillance that occurred at the defendant's home, place of business, and other related premises.[63]  Criminal defendants may also request an evidentiary hearing to determine whether the government received such records via illegal surveillance and ask that any evidence derived from an invasion of the defendant's privacy rights be suppressed.[64]  Here, an implant society would need to redefine "intrusion" and "privacy."  As a result, illegal surveillance may have a very different meaning in such a society.

                  As far as giving up the right altogether, one could imagine a population generations from now where high school students look at their history books in awe of a concept of privacy that they cannot fully understand.  Depending on the social policies of the time, these students may even look upon the right to privacy in disgust.  Such students may raise questions and concerns such as:  "How dare those uncivilized people of the past be so selfish as to put the rest of society at such risks?"  "Those poor lonely people!  If they only would have had implants, they would have been able to better connect with their neighbors.  Unlike us, they were never able to know anyone else as well as they know themselves."  Granted, not all third or fourth generation implantees will feel this way, but it is likely that the majority of implantees may come to regard their situation as advantageous.  


Some Final Thoughts Before the Computer Alerts the Human Monitor on Duty

With or without the right to privacy, in implant world would, and perhaps will be, a very interesting place.  This technology would bring about a multitude of changes in personal relationships, public policies, values, and other aspects of day to day life not addressed here.  As fun as it might be to access someone else's mind and control his or her thoughts from thousands of miles away, such a privilege may or may not be worth the price of deflated or abolished privacy rights.  It is difficult to determine for sure whether or not the right to privacy will still exist in some form, but it is certain that implanted individuals would not enjoy identical protections under the same laws that present-day United States take for granted.  Friedman notes that in a world where every place is public, society will have actually "stepped back at least several centuries, arguably several millennia."[65]  Considering the history of the development of the right to privacy, it is strange to think about how advanced implant technology could propel a society ahead and push it behind at the same time.

[1].              See Living by the Internet Alone, N.Y. Times, Jan. 7, 2001, § 3 at 10.

[2].              Libby Copeland, The Cyber House Rules; Dallasπs DotComGuy Makes a Domain Name for Himself, Wash. Post, July 8, 2000, at C01.

[3].              William G. Staples, Everyday Surveillance: Vigilance and Visibility in Postmodern Life 2 (Rowman & Littlefield 2000).

[4].              Rod Dixon, With Nowhere to Hide:  Workers are Scrambling for Privacy in the Digital Age, 4 J. Tech. L. & Polπy 1, ∂ 34 (1999).

[5].              Id.

[6].              Julia Scheeres, ID Chipπs Controversial Approval, Wired News (Oct. 23, 2002) at www.wired.com/news/politics/0,1283,55952,00.html; Note that FDAπs approval does not allow ADS to market VeriChip for medical purposes.  Right now it can only be used as a security or identification device. Weekend All Things Considered:  Implantable Microchip Identification May Soon be Available for People, as it is Now for Pets (NPR radio broadcast,  Nov. 16, 2002).

[7].              Applied Digital Solutions:  General Information at http://www.adsx.com/aboutadsx/ generalinformation.html (last visited Apr. 17, 2003).

[8].              Applied Digital Solutions:  VeriChip Personal Identification System - Frequently Asked Questions

 at http://www.adsx.com/faq/verichipfaq.html (last visited Apr. 17, 2003).

[9].              Id.

[10].            Digital Angel: Highlights at http://www.digitalangel.net/about.asp#1 (last visited Apr. 17, 2003).

[11].            Id.

[12].            Id. at http://www.digitalangel.net/about.asp#2.

[13].            Kenneth Chang, Robo-Rat, N.Y. Times, May 5, 2002, § 4 at 2.

[14].            Ben Harder, Scientists ≥Drive≤ Rats by Remote Control, Natπl Geographic News ∂ 2, (May 1, 2002), 

at http://news.nationalgeographic.com/news/2002/05/0501_020501_roborats.html.

[15].            Behavioral Neuroscience:  Rat Navigation Guided by Remote Control, 417 Nature 37-38 (2002).

[16].            Ben Harder, Scientists ≥Drive≤ Rats by Remote Control, Natπl Geographic News, at ∂ 10.

[17].            Id. at ∂ 14.


[18].            U.S. Patent No. 3,951,134 (issued Apr. 20, 1976).

[19].            Id.

[20].            U.S. Patent No. 5,935,054 (issued Aug. 10, 1999).

[21].            Applied Digital Solutions at http://www.adsx.com/faq/verichipfaq.html.



[22] Charles Doyle, The USA Patriot Act:  A Sketch, Cong. Res. Service 1 ≠ 2 (Apr. 18, 2002).

[23].          Personal observations from riding public grade school buses while attending a parochial

high school.

[24].            David D. Friedman, Professor of Law, Santa Clara University School of Law, in Santa Clara, Cal. (Jan. 23, 2003).

[25].            Id.

[26].            David D. Friedman, Future Imperfect 44 (2002), available at http://daviddfriedman.com/future_imperfect _draft/future_imperfect.html; See generally David Brin, The Transparent Society:  Will Technology Force us to Choose between Privacy and Freedom? (Addison-Wesley, 1998).

[27].            Friedman, Future Imperfect at 45.

[28].            Id. at 56.


[29].            A truly transparent society would be one in which everybody has access to everybody elseπs information, including thoughts, without the problems of control and misuse of data.

[30].            Deckle McLean, Privacy and Its Invasion 47-49 (Praeger Publishers, 1995); See also Friedman, Future Imperfect at 50.

[31].            McLean, Privacy and Its Invasion at 52-67.

[32].            Freidman, Future Imperfect at 50.

[33].            McLean, Privacy and Its Invasion at 121 ≠ 122.

[34].            Id. at 123.

[35].            Id. at 124.

[36].            Id.

[37].            Amitai Etzioni, The Limits of Privacy 196 (Basic Books, 1999).  [Note that ≥accountability≤ refers to ≥matters the government is or is not entitled to Œwatchπ≤.  Id. at 197.]

[38].            Id.

[39].            Id. at 197.

[40].            Id.;  See Roe v. Wade, 410 U.S. 113 (1973); See also Griswold v. Connecticut, 381 U.S. 479 (1965).

[41].            Etzioni, The Limits of Privacy at 201.

[42].            U.S. Const. amend. I, IV, V.

[43].            David Sadofsky, The Question of Privacy in Public Policy:  An Analysis of the Reagan-Bush Era 47 (Praeger Publishers, 1993).

[44].            Id.

[45].            Id.

[46].            Id. at 47.

[47].            Id. at 48.

[48].            Etzioni, The Limits of Privacy at 194.

[49].            Id.

[50].            Sadofsky, The Question of Privacy in Public Policy at 51.

[51].            Etzioni, The Limits of Privacy at 194, 189 - 190 (quoting Samuel Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 289-320 (1890)).

[52].            Id. at 190.

[53].            Sadofsky, The Question of Privacy in Public Policy at 52 (quoting Boyd v. United States, 116 U.S. 616 (1885)).

[54].            Id. at 54-55 (citing Watkins v. United States, 354 U.S. 178 (1956)).

[55].            Id. at 6.


[56].            McLean, Privacy and Its Invasion at 45 n.4.

[57].            Sadofsky, The Question of Privacy in Public Policy at 78.

[58].            Etzioni, The Limits of Privacy at 195-196.

[59].            Id. at 195.

[60].            See Etzioni, The Limits of Privacy at 133.

[61].            Matthew J. Gilligan, Stalking the Stalker:  Developing New Laws to Thwart those who Terrorize Others, 27 Ga. L. Rev. 285, 289-290 (1992).

[62].            See Etzioni, The Limits of Privacy at 133.

[63].            16-16 Benderπs Federal Practice Forms Form CrR16:32, Motion to Compel Disclosure of Records of Electronic Surveillance and for Suppression Hearing 1.


[64].            Id.

[65].            Friedman, Future Imperfect at 46.