On January 8, 2012, the U.S. District Court for the Western District of Texas issued a ruling denying a preliminary injunction in a case involving the use radio-frequency identification (RFID) tags embedded in name badges to track students (A.H. ex rel. Hernandez v. Northside Independent School District, 2013 WL 85604 (W.D. Tex.). Ultimately, the court concluded that the religious objections of the student's family had been accommodated by permitting the student to use a badge that was identical to the badges of other students, except that the RFID tag and battery had been removed.
The court gave significant deference to the school district's reasons for using the technology and concluded that the use of the RFID technology easily met the requirement that it be rationally connected to a legitimate government interest. Since the school was willing to accommodate the objection to the RFID tag, the issues were reduced to whether the required use of a badge that looked the same as the RFID badges was a form of forced expression in support of the program and whether the student was subjected to significant burdens in opting out of the use of the RFID tag.
Since the case turned on the question of religious accommodation, the court did not review the significant privacy issues in the case, which is unfortunate given the importance of those issues to the maturing legal and social debate regarding the use of geolocation tracking. In Canada, Privacy Commissioners have long been concerned about the use of RFID technology to track individuals. However, it is clear that RFID technology can be used in Canada, provided that an organization is able to justify that the use of RFID technology is reasonable using the Canadian four-part analysis discussed below.
Deployment of the RFID Technology
An RFID tag is a computer chip with a unique identification number. The RFID tag can be active or passive. An active RFID tag contains a power source and a micro antenna that actively transmits the RFID tag information without any user intervention. In this way, the active RFID tag operates differently than an identification card containing a passive RFID tag that must come into close contact with a reader (at least a few feet) in order to be scanned. Instead, the active RFID tag operates without any card holder intervention.
As widely reported, the controversy began when an active RFID tag was embedded into student name badges in a pilot program at a U.S. high school. Employees, students and visitors at the school already wear an identification badge. Schools and buses are equipped with digital cameras. The addition of RFID surveillance meant that the school could obtain geolocation information about the student while on campus. Among the other uses of the RFID tag, it provides for a method of determining daily student attendance, which affects state funding.
The Religious Objection and the Proposed Accommodation
The students' family objected on religious grounds to wearing the RFID tag. When the student was offered accommodation by having the RFID tag removed, her parents refused on the basis the participation in the program by even wearing the badge without the RFID would run against their religious beliefs. The family argued that the student should be permitted to wear a different badge altogether so that she would not appear to be supporting the program. The family also argued that the proposed accommodation also imposed burdens on the student. In particular, the student was unable to pay for lunch, check out library books, or participate in school activities in the same manner as other students, who could do so using the RFID-enabled badge. This meant that she was singled out.
Rational Connection to a Legitimate Interest
The court agreed that the school district has "a legitimate need to easily identify its students for purposes of safety, security, attendance and funding". The court held that the RFID badge was rationally connected to meet those needs and was also "a useful tool for the students because it serves as a convenient means of payment for lunch and extra-curricular activities and assists students in checking out library books."
The court held that any burden imposed on the student was outweighed by the governmental interest "in providing a safe and secure environment for everyone on campus". The court held:
"Even if Plaintiff could show a substantial burden, the District has a compelling governmental interest that outweighs such burden. In today's climate, one would be hard pressed to argue that the safety and security of the children and educators in our public school system is not a compelling governmental interest. Mandatory identification badges issued to all students, staff, and visitors further the school's interest in providing a safe and secure environment for everyone on campus. One could envision many different methods of ensuring safety and security in schools, and the requirement that high school students carry a uniform ID badge issued for those attending classes on campus is clearly one of the least restrictive means available."
The Canadian Approach
The Office of the Privacy Commissioner of Canada (OPC) has long taken the position that the existence of a legitimate security objective does not automatically justify the use of a surveillance technology. In order to assess the appropriateness of RFID technologies, the OPC uses a four-part analysis:
- Is the use of the RFID technology demonstrably necessary to meet a specific need?
- Is the use of the RFID technology likely to be effective in meeting that need?
- Is the loss of privacy proportional to the benefit gained?
- Is there a less privacy-invasive way of achieving the same end?
When analysing whether the RFID technology is likely to be effective in meeting a need, the OPC requires that organizations provide an evidentiary basis for the assertion of effectiveness.
Privacy Issues Not Discussed
Although the court in the Texas case noted the efficiency and the convenience of the RFID tag, the privacy issues were largely ignored in the court's assessment of whether the RFID tag was rationally connected and minimally impairing of the student's rights to freedom of religious expression and freedom of speech. Among other issues, the court did not assess the following issues, which should be critically examined in any RFID application in Canada:
- Reliability of the Technology. Did the active RFID technology actually fulfil its security purpose? Does the mere fact that the student's badge is on campus indicate that the student is on campus? Does the fact that the student's badge is not read as being on campus mean that the student is not on campus? How does the potential for misinformation affect whether the use of the RFID tag is rationally connected to the security concern?
- Security of the School's Readers. What administrative, technological and physical security systems have been deployed to protect the unauthorized access to and use of the information collected by the RFID system? Does the level of security of the information provided affect whether the system is rationally connected to a security purpose and minimally intrusive?
- Normalizing Tracking. Following previous jurisprudence, the court concluded that the constitutional rights of students in public schools may be different from those of adults in other settings. Does
this necessarily mean greater tolerance for tracking? Or, might it mean the opposite? Is it important that the state not use the occasion of providing public education to normalize a culture of tracking of future adult citizens?
For more information, visit our Data Governance Law blog at www.datagovernancelaw.com
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