Blog sites have been buzzing about the National Medical Device Registry, a new office in the U.S. Food and Drug Administration that was created in the Obamacare reconciliation package. Concern centers on the registry’s authority to conduct “postmarket device surveillance activities on implantable medical devices,” including those that feature radio-frequency identification. The word “surveillance” conjures ominous images of government tracking and reporting. Some have suggested the law lays the groundwork for compulsory microchip implantation so the state can keep tabs on everyone - for their own good, naturally.
But there is no compulsory microchipping in the new law, and “postmarket surveillance” is a term of art in the medical community that in this case refers to monitoring devices to make sure they do what they are supposed to do, and do not pose a health risk. The FDA has been involved in this for more than a decade. The innovation in the new law is to federalize and centralize what used to be a public-private partnership.
No doubt, privacy concerns are justified. The law is vague on what types of data may be collected and how, so while people may not be required to have radio-chip implants, those who get them for medical reasons may fall under the authority of the registry, whether they want to or not.
The Obama administration has gone on the record in favor of using innovative means to follow people’s movements. In February, the Justice Department argued before the 3rd U.S. Circuit Court of Appeals that government agents should be permitted to track citizens by triangulating the locations of their cell phones. The Obama administration argued this can be done without the need for warrants because Americans have “no reasonable expectation of privacy” when it comes to their personal communications devices.
If the O Force believes it’s OK for the government to track citizens by their cell-phone signals, it’s not a great leap to believe the same rule would apply to an implanted radio chip. This concern fits within a general disquiet over the Obama administration’s incessant drive to expand government power over Americans’ private lives.
The health care law’s provision mandating the purchase of health insurance, for example, is an unprecedented and unconstitutional claim of power under the Commerce Clause, which uses the IRS as its enforcement mechanism. A Congress that believes it can wield this type of power will determine that the government should mandate the type of electronic chips currently used to keep track of pets, livestock and convicts. The government already seems to believe that citizens can be divided among these three categories anyway.