Radio-frequency identification is a technology that's touted as the replacement for the bar code. These postage-stamp-size RFID tags contain a tiny microchip that's smaller than a grain of sand and capable of storing information. The tag also contains a tiny antenna that can communicate with a network and ultimately a database. The problem is that while the technology can track products, it also has the potential to track you. That fact has angered privacy groups, and privacy appears to be an issue that technologists didn't consider when creating RFID.

Historically, we've built information technologies in a clean room where the initial focus is purely technical innovation. Not many design teams include legal or public-policy advice outside of intellectual-property concerns. As a result, what we sometimes get are technologies, like RFID, that have implicit legal and social issues that must be resolved on the back end. That's an expensive and often muddy process that can slow or even stop commercialization.

There's no doubt that RFID could have a positive impact on the business community, but there are issues associated with RFID tags and their use as a potential personal tracking device. When the insurance company asks why your car was parked in a high crime area, will that be acceptable? Your luggage is at a hotel, what are you doing in Seattle? Why did you buy that particular drug? Do you have something wrong that we need to know about? Where's the truck you're driving for us--are you actually driving it or at lunch? The potential for George Orwell's vision of the future to live in the guise of RFID is only one abuse away.

There may be a technical fix that will resolve these concerns. Perhaps RFID tags can self-destruct after a period of time? Maybe the seller will remove the tag at the point of purchase? RFID could have a "kill switch" that will deactivate the chip. The fact that technologists are now looking for a solution points to a gap in the innovation cycle. That gap exists because we've become increasingly sensitive about invasive technology that has the potential to further chip away at our privacy. This is especially true when we're not given the chance to opt in or at least have an opportunity to be heard.

The innovation model needs to be changed to incorporate potential societal concerns, like privacy, on the front end, so that millions of dollars aren't sunk into technologies that we may have a concern about implementing. This isn't to say that RFID doesn't have great value, or that we ultimately may decide to balance what it offers against its social cost and give up more privacy. In an age where Americans already are feeling more restricted in the face of terrorist threats and technologies are becoming more interactive and more invasive, it remains to be seen how much more ground we'll be willing to give up to facilitate a replacement of the bar code.

Without sensitive innovation, companies will face the risk of state and federal regulatory oversight. Such oversight will make it more difficult to commercialize products and defeat the cost savings and streamlining impact of technologies like RFID. In fact, some state legislators already are beginning to look at RFID and before the debate is over, Congress will, too.

Bradford C. Brown is chairman of the National Center for Technology and Law at the George Mason University School of Law. Reach him at bbrown2@gmu.edu. (Any opinions expressed in this article are solely those of the author and do not necessarily represent those of the George Mason University School of Law.)

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