Among the many cutting edge technologies law enforcement agencies increasingly covet is radio frequency identification (“RFID”). Researchers predict RFID will become the most pervasive computer technology in history. Among the more extraordinary and controversial government uses of RFID—and the focus of this Paper—include implantation of subdermal RFID transmitters. Privacy concerns abound. Not surprisingly, critics and privacy advocates are wary of subdermal RFID implants, fearful that only a fine line separates relatively innocuous, voluntary implantation from arbitrary government-mandated implantation. But for involuntary implantation of RFID chips to take root, government implantation programs would have to start on the small scale, targeting the most unsavory and repugnant members of society: convicted sex offenders. Sex offenders are the foremost targets of our nation’s “punitive zeal.” Some states have moved to chemically castrating certain types of sex offenders, while others have considered implementing lifetime GPS monitoring. And, for the better part of two years, the chipping of convicted sex offenders has lingered in the minds of concerned citizens and government officials alike, mutually frustrated with the serious inadequacies of existing sex offender punishment and registration regimes. Some have even explicitly called for forced implantation of sex offenders. In addition, to some extent, involuntary chipping remains implicitly “on the table” even in those states where legislatures have banned involuntary implantation altogether. Recognizing that this is as much a political problem as it is a societal one, most agree that courts will have to rely on legislative sanction to have authority to order implanting of sex offenders. To date, there has been no federal legislation purporting to encourage or prohibit the use of tracking implants in anyone, let alone federally convicted sex offenders. This Paper analyzes how involuntary subdermal RFID could comply with existing federal sentencing laws, the Constitution, and public policy.
