Workplace Privacy Issues Raised by RFID Technology
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  • 1. Workplace Privacy Issues Raised by RFID Technology Dr Paul Roth Barrister and Professor of Law, University of Otago Radio Frequency Identification (RFID) is an automated technology that can be used to identify and track objects and living things, as well as store information.1 RFID uses wireless communication in radio frequency bands to transmit data from very small tags that can be attached to or embedded in things such as ID cards, bracelets, pallets, products, clothing, vehicles, livestock, and even people. RFID technology can therefore be used to track personal behaviour through objects that individuals wear, use, touch, carry or hold.2 After having been used for some time on livestock and other animals, RFID chips are now beginning to be implanted in employees. In 2004, the Mexican Attorney-General and 160 of his employees had rice-sized RFID tags implanted in their arms. The purpose of these was to regulate access to restricted areas of the Attorney-General's headquarters.3 Early this year, two employees of a US video surveillance company had implants, the purpose of which were to control access to a room where security video footage was being held for the government and the police.4 RFID technology is going to be used increasingly in New Zealand, as it has been overseas, for workplace monitoring purposes. In a report last year, the 25 Privacy Commissioners in the European Union stated that they expect RFID to become one of the main elements of a future "ambient intelligence environment", and expressed concern at the potential of RFID technology to "violate human dignity as well as data protection rights".5 Like covert filming, biometrics, drug testing, the monitoring of internet use, key logging, and other privacy-invasive technologies that have been introduced into the workplace over recent years, the advent of RFID will also generate workplace privacy concerns, but in due course it will doubtless have to be accepted as a new means of monitoring employees' behaviour and performance. The application of RFID to the workplace The main elements of RFID technology are a tag, a reader, and in some applications, a database.6 The radio frequency reader scans the tag for data, which can then be sent and stored for further processing in a database. The main characteristic of an RFID tag is that it is able to uniquely identify that to which it is attached. Unlike barcodes, RFID tags are more "intelligent", in that they have a memory that can provide readers with much more information, and this memory can be added to or altered. Moreover, there is a continuous link that can monitored involving the person or object with which the tag is associated. Accordingly, the major workplace applications of RFID technology are physical access control and tracking, whether of particular persons or objects. The tracking of objects can be used not only to monitor products as they proceed through the supply chain and inventory control, but also, indirectly, to measure performance associated with the production, handling, or movement of a particular object. In conjunction with a database, the technology can be used to compile a profile of an individual's Paul Roth – Privacy Issues Forum – 30 March 2006 – Te Papa, Wellington, New Zealand
  • 2. 2 workplace performance. The trend with RFID currently in the United States is to incorporate it into access cards and load them with information that is specific to each employee, such as photo ID, fingerprints, social security number, driver license number, and the like. The card can then be used for a variety of purposes, such as timekeeping, gaining access to secure parts of the workplace, locating particular workers, or logging on to computers. For example, hospitals across the United States are using RFID to track down surgeons who are needed in the emergency room, and to monitor access to storerooms where drugs are kept, in order to prevent theft.7 In the United Kingdom, the general workers' union GMB has already called for a Europe-wide ban on supermarkets and other employers using RFID and global positioning system (GPS) technology to tag and track staff in the workplace. 8 The union complains about the "dehumanisation" of shelf-stackers and warehouse staff by employers who use the technology to track how long it takes workers to complete their tasks. The union advocates the enactment of legislation to control the use of RFID. In the United States, the Rand Corporation published a study last year on the use of RFID access cards in the workplace and found that there were some serious privacy concerns related to their use.9 In particular, electronic access cards can be used not only to open doors, but they can also be used to monitor employee movements. The Rand study looked at how six private sector companies with 1,500 or more employees used RFID technology in the workplace, as well as their policies for collecting, retaining, and using the records generated by their use. Typically, RFID access cards are used to open doors. After being scanned by a reader, the barrier may not only be opened for authorised persons, but a record of the movement may be stored in a database as well. In the Rand corporation study, five of the six companies said that the records that were collected were used in both a personally identifiable form, to track and record the movements of an individual, and in aggregate form, to describe the behaviour of many individuals without identifying who they were. The uses of information where the individual could be personally identified included investigating infractions of work rules, such as misreporting time spent working, and in one case, monitoring the employees of an acquired company to ensure that they adopted the acquiring company's norms for working hours. The aggregated records were used in logistics and cost analyses, such as refining building evacuation plans, and to generate required government reports (an air quality report characterising the number of employees at the workplace). Of the six companies surveyed, only one had an explicit, written policy governing the use of RFID in the workplace, and that was provided only to the security arm of the organisation rather than all employees in the company. Moreover, none of the companies had a limited data retention policy, but stored the records for an indefinite period. In each of the companies, the records were linked (in four companies manually, in two automatically) to other company databases, usually to personnel records in the human resources division. This was regarded as inevitable, given that individual employees were generally assigned unique identifiers. In one company, the company linked the database to medical records in order to allow an employee's badge to be scanned quickly to call up relevant medical records during an emergency. In none of the companies were employees informed that data collected with access cards were used for more than merely controlling locks. Paul Roth – Privacy Issues Forum – 30 March 2006 – Te Papa, Wellington, New Zealand
  • 3. 3 The Rand study noted that the uses to which RFID data were put were largely invisible to employees. Employees were not informed about the uses of their information or the right to inspect and correct records about their activities. It also noted that the use of RFIDs in access control systems represented the loss by workers of what it termed "practical obscurity". Movement around the workplace was no longer generally anonymous because of the time and expense formerly required to monitor workers' comings and goings. RFID technology now makes it possible to monitor workers' movements automatically all of the time. To sum up, key privacy issues arising from the use of RFID technology in employer surveillance and monitoring will involve: • the security of information obtained from RFID collections and stored in databases. As with any type of collection of data, security breaches can involve unauthorised access and manipulation or falsification of data, breaches of confidentiality, and interferences with data integrity. RFID technology in particular is open to security breaches such as tag counterfeiting or cloning; eavesdropping by other readers; and "replaying", where a valid data transmission is maliciously or fraudulently intercepted and retransmitted. • adequate notification of individuals of the existence of RFID collections and subsequent uses of personal information. Individuals may not be aware that their personal information is being collected or constructed through linkages, or else may not be aware of what uses to which the collected data are being put. The privacy of an individual's movements can easily be interfered with when RFID is used for surveillance purposes (e.g., to track someone going to the toilet). • the practical difficulty of employers accommodating access and correction rights in an RFID environment, and the even greater difficulty for workers in exercising their access and correction rights meaningfully in disciplinary contexts, given that the large number of discrete bits of information concerning each movement will be difficult to explain or verify in retrospect. • the collection of data about an individual's movements or transactions over time so as to build up an increasingly accurate profile of that worker's conduct or performance. As tags become more and more common, tags on items carried or worn by an individual can be scanned by a compatible reader for additional information about an individual, such as their tastes, habits, or even medical condition. For example, RFID has been used to track medicines, which would enable an employer to scan for prescription drugs being taken by a worker or job applicant. The application of the Privacy Act to RFID Although the technology and potential applications of RFID are novel, and can have important ramifications for privacy interests, the legal issues that are raised as far as the workplace are concerned generally are not. The position is governed by existing employment law and the Privacy Act. The employer is entitled to monitor worker movements and conduct during working hours, so long as the means employed are fair and reasonable and do not unjustifiably disadvantage employees. Paul Roth – Privacy Issues Forum – 30 March 2006 – Te Papa, Wellington, New Zealand
  • 4. 4 As far as the Privacy Act is concerned, the information privacy principles relating to the collection, retention, use, and disclosure of the personal information about individuals will apply. Moreover, the employer will not incur legal liability under the Privacy Act unless some harm or loss, or serious humiliation or loss of dignity, is caused to the employee.10 As a prerequisite for the application of the Privacy Act, however, the information concerned must be "personal information", that is, "information about an identifiable individual" (s 2). Where RFID is used to identify products or packages and their movements, this will not raise concerns under the Privacy Act unless the technology is also collecting or using information about identifiable individuals associated with these items, whether directly or indirectly through some form of linkage. From a privacy law perspective, therefore, information about objects will only be relevant if it can be related to identifiable individuals. Another preliminary issue that is likely to arise is whether, in relation to the collection of personal information through RFID, such information is in fact "collected" in terms of the Privacy Act. This is because 2 defines "collect" as excluding the "receipt of unsolicited information". Arguably, there is a question whether or not information obtained through RFID is "solicited" from the individual, as it is automatically transmitted by the tag to the reader. Whether or not personal information is "collected" is terms of the Privacy Act definition would affect the application of the information privacy principles relating to the collection of personal information, and in particular, principles 2 ("Source of personal information") and 3 ("Collection of information from subject"). A key principle that would be engaged if RFID tag reading constitutes a "collection" of personal information will be principle 1, which provides that an agency may not collect personal information unless it is collected for a "lawful purpose connected with a function or activity of the agency; and the collection of the information is necessary for that purpose." The potential obstacle to the use of RFID here is the standard of "necessity" for achieving the particular purpose for which RFID is proposed to be used. The application of this principle, with its ostensibly strict standard of "necessity", may not be waived by the employee. The Privacy Commissioner's approach to this standard in the workplace context in past cases, however, does not involve the imposition of a very high threshold upon employers at all. For example, the Privacy Commissioner has found that the use of biometrics 11 and psychological testing12 by employers was permissible in terms of principle 1 even though there might have been other, less intrusive, means of achieving the same purposes concerned in the particular circumstances. More tricky, however, will be employer compliance with, and employees' exercise of, access and correction rights under principles 6 and 7. It will be likely to prove cumbersome for employers to supply this information upon request to employees due to possible difficulties in retrieval and disaggregation of the information. However, the only time that anything is likely to turn on such a request is when the information is being used in an employment disciplinary process, and then the rights of access and correction will not be likely to be of much avail to the employee concerned due to the detailed nature of the information concerned and the difficulty of detecting an erroneous or misleading record.13 Paul Roth – Privacy Issues Forum – 30 March 2006 – Te Papa, Wellington, New Zealand
  • 5. 5 In sum, RFID technology will pose new challenges to privacy rights and expectations in the workplace, but in the end it will have to be accommodated under employment and privacy law, like other new technologies. It may be, however, that some special provision may need to be made under privacy law to take account of the unique characteristics and implications of RFID. Paul Roth – Privacy Issues Forum – 30 March 2006 – Te Papa, Wellington, New Zealand
  • 6. 1 This paper is an edited and updated version of my earlier article “The Workplace Implications of RFID Technology” [2006] Employment Law Bulletin 10-14. 2 Patrick Van Eecke and Georgia Skouma, "RFID and privacy: a difficult marriage?", (2005) 10(3) Communications Law 84, at 85. 3 Will Weissert, "Chip implanted in Mexican judicial workers", Associated Press, 14 July 2004, available at www.infowars.com/print/bb/judicial_employees_implanted.htm. 4 Richard Waters, "US group implants electronic tags in workers", Financial Times, 12 February 2006, available at news.ft.com/cms/s/ec414700-9bf4-11da-8baa-0000779e2340,s01=1.html 5 Article 29 Data Protection Working Party, Working Document on Data Protection Issues related to RFID Technology, 10107/05/EN, WP 105, 19 January 2005, pp 2 and 3, available at www.europa.eu.int/comm/privacy. 6 For technical discussion of RFID, see the Article 29 Data Protection Working Party's Report (ibid), annex, and the United States Government Accountability Office, Information Security: Radio Frequency Identification Technology in the Federal Government (GAO-05-551, May 2005), available at www.gao.gov. 7 Sue Darcey, "Keeping Track of Workers with RFIDs: Crucial Workplace Protection or Big Brother?", (2005) 4(13) Privacy & Security Law 416 (March 28 2005), available at subscript.bna.com. 8 Andy McCue, "Union calls for European ban on staff-tracing RFID", silicon.com (www.silicon.com), 19 July 2005, available at hardware.silicon.com/servers/0,39023843,39150564,00.htm. 9 Edward Balkovich, Tora K Bikson, Gordon Bitko, 9 to 5: Do You Know If Your Boss Knows Where You Are? Case Studies of Radio Frequency Identification Usage in the Workplace (Santa Monica, California, 2005), available at www.rand.org/publications/TR/TRI97. 10 Section 66. The exception, where no harm or loss is required, is in relation to breaches of principle 6 and 7, which relate to denied access to personal information and refusals to accommodate rights of correction: see s 66(2) and Winter v Jans and Jans, High Court, Hamilton, CIV-2003-419-854, 6 April 2004, Paterson J. 11 Case Note 33623 (February 2003). The complainant was a union that objected to the introduction of finger-scanning technology for an employer’s payroll system. 12 Case No 2418 (August 1999). The test contained 200 questions, many of which the complainant, a job applicant, claimed were too personal considering the nature of the position. 13 See above, note 9, p 20.