The capture and long-term storage of carbon dioxide from power plants and other industrial installations may prove a key technology in climate change abatement strategies. Regulatory frameworks for carbon capture and storage (CCS) are now being developed in a number of jurisdictions. The European Union produced the first comprehensive legislation on the subject in 2009, which provides a compelling example of challenges associated with the design of regulation dealing with a novel technology. This chapter identifies three issues, each of which reflects aspects of regulatory legitimacy: the extent to which states within a federal or quasi-federal system should have the legal discretion to reject a technology; the way in which regulation provides for opportunities for public participation and engagement in issues concerning the new technology; and whether, and at what point, the state should assume responsibility for storage sites, given the long timescales necessary for secure storage.
This chapter explores some challenges that arise in respect of the regulation of human enhancement. It opens by advocating a definitional pluralism that acknowledges the existence of many concepts of human enhancement. These highlight different moral concerns about the application of genetic and cybernetic technologies to human brains and bodies. I identify one concept that is particularly effective at expressing the upsides of human enhancement. Another concept serves better to reveal enhancement’s downsides. I describe a further concept that reveals moral issues connected with great degrees of human enhancement. The chapter concludes with a discussion of attempts to regulate enhancement in elite sport. I defend the efforts of the World Anti-Doping Agency (WADA) to keep artificial means of enhancement out of sport.
Technological developments have complex, ambiguous and sometimes contradictory effects of on the institutions, norms and practices of citizenship. The chapter investigates the relationship between technology and citizenship by exploring the tensions between inclusion and emancipation, on the one hand, and exclusion and control, on the other hand. It discusses inclusionary and exclusionary aspects of developments in the areas of digital and biotechnologies in respect to access to legal status, political participation, and identity. It also examines the emancipatory potential of technologies at the level of citizenship practices and issues related to social and political control, which are triggered by increased and pervasive surveillance. The chapter suggests that the tensions between citizenship and technology are not inherent but rather derived from the circumstances in which technologies are adopted, the ways in which they are used, and the ongoing political struggles over citizenship.
In conventional thinking, the promise of scientific progress gives automatic and unquestioned legitimacy to any new development in biotechnology. It is the nearest thing we have in a morally relativistic society to the concept of the common good. This chapter begins by examining a recent case study, so-called ‘mitochondrial transfer’ or three-person IVF, in which policymakers appeared to accept that this new technology should be effectively deregulated because that would serve UK national scientific progress and the national interest, despite serious unanswered concerns about its effectiveness and safety. The historical and philosophical underpinnings of the concept of the common good should make us more sceptical of the manner in which the concept can be perverted by particular interests. But there are also hopeful signs that the common good and the biomedical commons are being taken seriously in new models for governance of genomics and biotechnology more generally.
Data mining technologies are increasingly prominent in development and aid initiatives in which context they may be understood to be doing work of global governance. This chapter explains how data mining may be so characterized and explores how this work may be compared to more conventional governance techniques and institutions. The chapter first provides an overview of some exemplary initiatives among international institutions in which data mining plays a crucial role. It then presents a playful, mundane analogy for a governance challenge—the sorting of a sock drawer—and compares a familiar law and policy approach and a data mining approach to this challenge. Lastly, it highlights what may be at stake in the practice of data mining on the global plane and associated shifts in regulatory technique, arguing for this practice to be regarded as a matter of broad-ranging public concern.
John McMillan and Jeanne Snelling
This chapter discusses the role that equality plays within liberal theory. We show how the concept of treating citizens as equals is integral to the legitimization of the state and its regulations, including those involving new technologies. We suggest that equality is a fundamental value when exploring the scope of relevant freedoms with respect to new technologies. However, understanding the role of equality for such issues requires sensitivity to important differences in the way in which it can be theorized. We explain how equality can be valued intrinsically, instrumentally, or constitutively. We also explain three different accounts of what egalitarian justice demands that are particularly relevant to framing policy involving new technology.
This chapter investigates how human dignity might be understood as a normative concept for the regulation of technologies. First, various distinctions that are relevant for the way human dignity can be understood are discussed. It is argued that it is particularly important that we should see human dignity as a concept that ascribes a specific status that forms the basis of the human rights regimes. Second, the author’s own approach, inspired by Kant and Gewirth, is presented, it being proposed that we should see the concrete content of human dignity as the protection of the authority of human beings to govern their own lives. Third, various consequences for the evaluation of technologies are discussed. In a context of major global and ecological challenges, together with the replacement of human action by automation, the role of human dignity becomes one of guiding the development of a technology-responsive human rights regime.
The social changes brought about by the deployment of information technologies are wide-ranging and fundamental. A human rights analysis of such technologically driven changes shows how they implicate significant opportunities as well as risks. The chapter argues that human rights are a core aspect of regulating such technologies, particularly as human rights provide a unifying purposive perspective for diverse technologies and deployment contexts. To this end, the chapter examines how the opportunities and risks of information technologies affect and relate to the fundamental values of freedom, dignity, and equality, as well as specific human rights, such as privacy or freedom of expression.
Identity is a basic concept which concerns the way in which the world divides up at one time into different things which are then reidentified despite change over the course of time until they cease to exist. Important debates concern the relation between identity and similarity, between something’s identity and the kind of thing it is, how far identity is fixed by human interests, and especially whether identity over time is really coherent. But the special focus of philosophical debate has long been the topic of personal identity—how far this is distinct from that of our bodies and how far it is determined by our self-consciousness. Recent discussions have also emphasized the importance of our sense of our own identity, which perhaps gives a narrative unity to our lives.
Roger Brownsword, Eloise Scotford, and Karen Yeung
This chapter introduces law, regulation, and technology as a rapidly developing field of research. It offers a frame for an ambitious set of scholarly inquiries by suggesting three connected themes for research, each evoking ideas of ‘disruption’: (1) technology’s disruption of legal doctrine and its normative foundations; (2) its disruption of regulatory frameworks more generally, often provoking concerns about regulatory legitimacy; and (3) challenges in constructing regulatory environments that are ‘fit for purpose’ in light of rapid technological development and disruption. The chapter then outlines the Handbook’s structure, reflecting on the core values that underpin the law and regulation of technology; the doctrinal questions posed by new technologies; and how regulatory governance processes and institutions have been shaped by technological innovation. The final section examines these issues across six key policy spheres for technological development. We conclude by reflecting on the future of research and education in the field.
John Harris and David R. Lawrence
Two genetic technologies capable of making heritable changes to the human genome have revived interest in, and in some quarters a very familiar panic concerning, so-called germline interventions. These technologies are most recently the use of CRISPR/Cas9 to edit genes in non-viable IVF zygotes and Mitochondrial Replacement Therapy (MRT). The possibility of using either of these techniques in humans has encountered the most violent hostility and suspicion. Here, we counter the stance of the US NIH and its supporters by showing that differing global moralities are free to exist unimpeded under international biolaw regimes, which do not in any way represent unified opinion against such technologies. Furthermore, we suggest a more rational approach to evaluating them through analysis of similar technologies which have caused past controversy.
In the 2015 revision of the EU Novel Foods Regulation, risk assessment processes remain separated from those of risk management in the regulation of novel foods. This chapter examines why this structure has emerged in Europe, and shows how both legal and political constraints ruled out a more integrated model. Although the European Commission has been strongly supportive of the science information model that emerges under the European Food Safety Authority, the chapter argues that ‘ring fencing’ questions of scientific risk assessment has proved problematic, as has excluding from that assessment wider factors that might inform it. This chapter then reviews the resultant difficulties across three areas of technology, the food products of which are regarded as novel under the Regulation: cloning, genetic modification, and nanotechnology.
Strong political pressures mean that few issues in international governance of science and technology are more misunderstood than the precautionary principle. Often accused of being ‘anti-science’, precaution simply acknowledges that not all uncertainties can be artificially aggregated to ‘risk’. ‘Real-world’ imperatives for justification, acceptance, trust, and blame management unscientifically suppress the indeterminacies, complexities, and variabilities of the ‘real’ real world—and so reinforce attachments to whichever innovation trajectories are most powerfully backed by default. Resisting these pressures for circumscribed ‘risk assessment’, precaution explicitly emphasizes health and environment—and challenges pretence that technology choices can be value-free. Additionally, precaution points to a host of normally-excluded methods that allow greater rigour, balance, completeness, transparency, and accountability in evaluating priorities and interpreting evidence. This chapter reviews key associated issues in technology governance, and highlights practical ways to help more deliberate social steering of the directions taken by science and technology.
Robin Bradley Kar and John Lindo
Despite the ‘Age of Genomics’, many scholars who study race and the law resist biological insights into human psychology and behaviour. Contemporary developments make this resistance increasingly untenable. This chapter synthesizes recent findings in genomics and evolutionary psychology, which suggest cause for concern over how racial concepts function in the law. Firstly, racial perceptions engage a ‘folk-biological’ module of psychology, which generates inferences poorly adapted to genomic facts about human populations. Racial perceptions are, therefore, prone to function in ways more prejudicial than probative of many issues relevant to criminal and civil liability. Secondly, many folk biological inferences function automatically, unconsciously, and without animus or discriminatory intent. Hence, current equal protection doctrine, which requires a finding of discriminatory intent and is a central mechanism for guaranteeing people equal treatment under the law, is poorly suited to that task. These facts support but complicate several claims made by Critical Race Theorists.
Lyria Bennett Moses
This chapter looks broadly at how lawyers and regulators should understand the relationship between regulation and changing technologies. It argues that instead of asking how we might 'regulate technology' or 'regulate new technology', we should focus on the question of how we might institutionally manage the adjustment of law and regulation in light of ongoing sociotechnical change. In particular, it argues that 'technology' is neither a special rationale for nor a special object of regulation, but rather that it is changes in the sociotechnical landscape that generate a need to constantly re-evaluate regulatory regimes. It concludes with high-level principles that follow from this reframing for regulatory design, choice of regulatory institution, regulatory timing, and regulatory responsiveness.
Leah Plunkett, Urs Gasser, and Sandra Cortesi
New types of digital technologies and new ways of using them are heavily impacting young people’s learning environments and creating intense pressure points on the “pre-digital” framework of student privacy. This chapter offers a high-level mapping of the federal legal landscape in the United States created by the “big three” federal privacy statutes—the Family Educational Rights and Privacy Act (FERPA), the Children’s Online Privacy Protection Act (COPPA), and the Protection of Pupil Rights Amendment (PPRA)—in the context of student privacy and the ongoing digital transformation of formal learning environments (“schools”). Fissures are emerging around key student privacy issues such as: what are the key data privacy risk factors as digital technologies are adopted in learning environments; which decision makers are best positioned to determine whether, when, why, and with whom students’ data should be shared outside the school environment; what types of data may be unregulated by privacy law and what additional safeguards might be required; and what role privacy law and ethics serve as we seek to bolster related values, such as equity, agency, and autonomy, to support youth and their pathways. These and similar intersections at which the current federal legal framework is ambiguous or inadequate pose challenges for key stakeholders. This chapter proposes that a “blended” governance approach, which draws from technology-based, market-based, and human-centered privacy protection and empowerment mechanisms and seeks to bolster legal safeguards that need to be strengthen in parallel, offers an essential toolkit to find creative, nimble, and effective multistakeholder solutions.
Tjerk Timan, Maša Galič, and Bert-Jaap Koops
This chapter provides an overview of key surveillance theories and their implications for law and regulation. It presents three stages of theories that characterize changes in thinking about surveillance in society and the disciplining, controlling, and entertaining functions of surveillance. Beginning with Bentham’s Panopticons and Foucault’s panopticism to discipline surveillees, surveillance theory then develops accounts of surveillant assemblages and networked surveillance that control consumers and their data doubles, to finally branch out to theorizing current modes of surveillance, such as sousveillance and participatory surveillance. Next, surveillance technologies and practices associated with these stages are discussed. The chapter concludes by highlighting the implications for regulators and lawmakers who face the challenge of regulating converging, hybrid surveillant infrastructures and assemblages, both in their context-dependent specificity and in their cumulative effect on citizen/consumers.
Robin Kundis Craig
The water–energy nexus describes the reality that the provision of water always requires energy, while the production of most forms of energy requires significant amounts of water, particularly electricity production in thermoelectric power plants. As a result, electricity production and water supply are always intimately related, and changes in one of these arenas directly affect the other. However, law and policy rarely acknowledge this technology-mediated interrelationship, even though climate change will impose increasing stresses on both sides of the equation. While technology can help to mitigate these stresses, water law and energy policy could both do more to consider the trade-offs among water supply, energy production, and environmental protection.