Emerging Technologies and the Future of Law 2011 Annual Utah Judicial Conference September 16, 2011

Transcription

1 Emerging Technologies and the Future of Law 2011 Annual Utah Judicial Conference September 16, 2011 Gary Marchant, Ph.D., JD Center for Law, Science & Innovation Sandra Day O Connor College of Law gary.marchant@asu.edu

2 Introduction: Change

3 Change Chief Justice Roberts: [P]oliticians and judges for that matter should be wary of the assumption that the future will be little more than an extension of things as they are.

4 Change: Another View Change is inevitable, except from vending machines - Woody Allen

5 Technology Revolutions of the 20 th Century

6 Early 21 st Century: Multiple Converging Technology Revolutions Biotechnology and Genetics Nanotechnology Computing and Communication Technologies Neurobiology and Cognitive Sciences Technologies with radical, pervasive & enduring impact Source: adapted from George Poste

7 Exponentially Accelerating Technologies Moore s Law: Intel cofounder predicted in 1965 that the number of transistors per sq. inch of a computer chip will double every 18 months Monsanto s Law: The ability to identify and use genetic information is doubling every twelve to twenty-four months.

8 Ray Kurzweil: Exponential Change An analysis of the history of technology shows that technological change is exponential, contrary to the common-sense intuitive linear view. So we won t experience 100 years of progress in the 21 st century it will be more like 20,000 years of progress (at today s rate).

9 Rapid Change Occurring Today The gulf between what engineers are actually creating today and what ordinary readers might find believable is significant. - Joel Garreau, Radical Evolution

10 What Does This Have to Do With Bankruptcy? Creative destruction : The fundamental impulse that sets and keeps the capitalist engine in motion comes from the new consumers, goods, and new methods of production or transportation, the new markets, the new forms of industrial organization that capitalist enterprise creates that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one Joseph A. Schumpeter

11 The Technologies

12 I. Genetics

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15 The (Near?) Future: Genome on a Chip Goal: Your entire genome on a chip U.S. Gov t goal: $1K genome within 5 years Already complete genomes for some genetic celebrities James Watson Craig Venter Personal Genome Project

16 Today: Direct-to-Consumer (DTC) Genetic Testing

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18 Our DNA is Everywhere We are constantly shedding our DNA in saliva, hair, skin cells New techniques allows collection, amplification, and characterization of our DNA Examples: Cigarette butt Chewing gum Drinking glass Straw Envelope ABA Journal, August 2011

19 New Era of Personalized Medicine In the very near future, primary care physicians will routinely perform genetic tests before writing a prescription because (they will) want to identify the poor responders. Francis Collins (AAFP Annual Meeting, 1998)

20 Personalized Medicine Liability: Physicians The perfect target? Direct patient contact Ample supply of critics, with plenty of ammunition. Limited defenses Defenses for payors and manufacturers Source: Robert Milligan

21 Natural Born Killers?

22 Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wife s friend and tried to also murder his wife Charged with capital murder Tested positive for MAOA high risk gene variant; suffered from early childhood abuse Jury convicted him of voluntary manslaughter rather than felony murder

23 Pre-Implantation Genetic Diagnosis Sex Cystic fibrosis Genetic carrier Cancer susceptibility gene Selection for deafness Eye or hair color? Musical pitch? Sexual orientation? Athletic ability? Antisocial behavior? Intelligence?

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25 II. Nanotechnology

26 Nanotechnology: What Is It? Definition: The study, manipulation, and design of materials and technologies at the molecular scale unique properties at the nanoscale One nanometer = a billionth (10-9 )of a meter =1/75,000 the width of a human hair Nanotechnology generally defined as materials <100nm

27 Nanotechnology: Impacts and Importance Senator Ron Wyden: The nanotechnology revolution has the potential to change America on a scale equal to, if not greater than, the computer revolution. Newt Gingrich, former House Speaker Nanotechnology is our country s future. Andrew Eschenbach, Director, NCI We expect to end the pain and suffering due to cancer by 2015

28 Nanotech Projections

29 Over 1300 Nano Products Already On Market

30 Some Examples of Cool Nanotech Products Stain resistant pants Odor-free socks Self-cleaning glass Nano-sized sensors to signal food spoilage Nano smart dusts to detect chemicals Advanced drug delivery devices that can target individual cancer cells

31 Corporate America Embraces Nano

32 Nanotechnology: The Next Asbestos?

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34 III. Surveillance Technologies

35 Surveillance Technologies Surveillance cameras GPS systems RFIDs Black boxes in cars Computer monitoring Biometrics Smart dusts

36 Location Based Services Dozens of LBS services now available on phones: Directions Restaurant guide Distance/speed tracking (e.g., joggers) Tracking child, employee, friend, etc. Location-based ads Friend finding services

37 Social Media Location Services Foursquare Google Latitude Facebook Places

38 Criminal Investigations Police are using GPS to investigate/solve more and more crimes Place GPS device on outside of suspect s vehicle Obtain access to data from after-market GPS on suspect s vehicle Obtain real-time or historical location data of crime suspect from cell phone GPS records Request data from cell phone carriers on phone owners present at time/place of crime Uncertainty/inconsistency on when such requests are a search subject to warrant requirement U.S. Supreme Court has accepted certiorari this upcoming term for GPS chips on cars

39 Other Types of Tracking Employers tracking employees Parents tracking children Suspicious spouses tracking partners GPS stalkers

40 Car Insurance

41 New Uses of GPS Road Pricing Total speed limit enforcement Remote braking for speeding vehicles GPS cameras ( geotagging ) Traffic monitoring TVs and other expensive equipment with location-sensitive immobilizers GPS-enabled firearms GPS-enabled electronic documents

42 GPS Privacy Issues For how long will service providers retain location information? Can they sell information to other companies? Under what conditions will information be disclosed to police? Subpoenas for location history records in litigation (e.g., divorce)? In 2002, the cellular phone industry association requested the Federal Communications Commission to provide guidance on acceptable and unacceptable use of locational and tracking technologies; FCC declined the request

43 A Self-Fulfilling Prophecy? You already have zero privacy. Get over it. - Scott McNealy, CEO of Sun Microsystems (1999) 1984 may have come a bit later than predicted, but it s here at last - 9 th Cir. Chief Judge Kozinski (2010)

44 IV. Brain Scanning

45 Brain Scanning Current applications include: Lie detection Crime scene recognition Terrorist identification Latent racial animus Political preferences Neuromarketing Pain Mental health vulnerabilities Sexual attraction Extraversion Drug and alcohol use Empathy Pessimism Intelligence Awareness in vegetative state Intentions

46 fmri Lie Detector Theory: Different (and more) parts of brain light up when telling lie versus truth (Mark Twain: if you tell the truth you don t have to remember anything ) Experimental studies: show approx. 90% accuracy (in ideal lab controlled conditions) Defense Counsel Robert Shapiro I d use it tomorrow in virtually every criminal and civil case on my desk. Regions of color show increased blood flow to those areas of the brain, showing more activity

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49 Feb AAAS Annual Meeting Included session on early prediction of violent proclivity in young children Dr. Adrian Raine presented (unpublished) data claiming to show brain scans of 3 year olds could predict future violent behavior in individuals followed for 20 years Dr. Nathalie Fontaine If we could identify these children early enough, we could help them as well as their families.

50 V. Virtual Worlds

51 Law in Virtual Worlds

52 Virtual Worlds: Second Life - Not a game; but a virtual environment for social interaction, politics, commerce, research, education, entertainment, illicit activities, etc. Each participant picks and designs an avatar Currency:Linden dollars (~186 L = $1) Own IP rights to whatever you design in world Approx. 13 million registered users Many participants earning real money in 2 nd Life 800,000 unique items sold or traded per month

53 Second Life Images

54 Some Legal and Social Issues in Virtual Worlds What will be the social, economic, political, and legal impacts of people spending more and more time in virtual reality? Can enforceable rights (e.g., contractual, IP, marital) be created in virtual reality? Should Linden dollar earnings be taxable? Jurisdiction over 2 nd Life disputes? Unauthorized practice of law?

55 Many Other Emerging Technologies Coming.

56 Biotechnology

57 Synthetic Biology

58 Pervasive Computing

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61 Cognitive Enhancement

62 Brain Implants and Cyborgs

63 Robotics

64 Negligible Senescence

65 Conclusion

66 Emerging Technology Revolutions We are on the leading edge of a series of simultaneous technological revolutions: Genetics/personalized medicine Surveillance technologies Biotechnology Nanotechnology Synthetic biology Virtual realities Enhancement technologies Neurosciences

67 The Challenge of Emerging Technologies Emerging technologies create new challenges to risk management Highly uncertain benefits, risks, trajectories Extremely rapid development and progression Risks go beyond health and safety risks to new types of risks Ethical risks Privacy risks

68 Managing the Risks of Emerging Technologies? Religion? Social Values and Norms? Market Forces? Scientific self-regulation? Law? Legislation Regulation Liability/Litigation

69 Current Regulatory Systems Inadequate We have moved into a world dominated by rapid improvements in products, processes, and organizations, all moving at rates that exceed the ability of our traditional governing institutions to adapt or shape outcomes. If you think that any existing regulatory framework can keep pace with this rate of change, think again. -David Rejeski, The Next Small Thing, The Environmental Forum, March/April 2004, at 45.

70 Role of Courts For almost all of these emerging technologies, Congress and regulatory agencies have been silent and are unlikely to be able to keep pace with technology Therefore, it will often be courts that are forced to address these technologies in the first instance

71 So in the end.