This chapter examines the legitimacy of utilizing human biomedical interventions for regulatory purposes, drawing on regulatory governance scholarship, bioethical debates about human enhancement, and constitutional scholarship concerning fundamental rights. It considers whether the use of biomedical techniques to pursue regulatory and other public policy purposes is ethically equivalent to the use of traditional techniques that target the design of the social environment, including the alleged ethical ‘parity’ between social and biological interventions into the human mind. It argues when contemplating these techniques, we must consider who is seeking to utilize them, for whom, for what purpose, for whose benefit, and at what cost (and to whom). In wrestling with these questions, we must also attend to the social meanings associated with particular ends–means relationships, what is it that we value in human nature, and different understanding of ideas of human flourishing and the good life.
Audience Constructions, Reputations, and Emerging Media Technologies: New Issues of Legal and Social Policy
Nora A. Draper and Joseph Turow
This chapter traces how changes in media and surveillance technologies have influenced the strategies producers have for constructing audiences. The largely unregulated practices of information gathering that inform the measurement and evaluation of audiences have consequences for how individuals are viewed by media producers and, consequently, for how they view themselves. Recent technological advances have increased the specificity with which advertisers target audiences—moving from the classification of audience groups based on shared characteristics to the personalization of commercial media content for individuals. To assist in the personalization of content, media producers and advertisers use interactive technologies to enlist individuals in the construction of their own consumer reputations. Industry discourse frames the resulting personalization as empowering for individuals who are given a hand in crafting their media universe; however, these strategies are more likely to create further disparity among those who media institutions do and do not view as valuable.
Amber Marks, Ben Bowling, and Colman Keenan
This chapter examines how forensic science and technology are reshaping crime investigation, prosecution, and the administration of criminal justice. It highlights the profound effect of new scientific techniques, data collection devices, and mathematical analysis on the traditional criminal justice system. These blur procedural boundaries that have hitherto been central, while automating and procedurally compressing the entire criminal justice process. Technological innovation has also resulted in mass surveillance and eroded ‘double jeopardy’ protections due to scientific advances that enable the revisiting of conclusions reached long ago. These innovations point towards a system of ‘automatic justice’ that minimizes human agency and undercut traditional due process safeguards that have hitherto been central to the criminal justice model. To rebalance the relationship between state and citizen in a system of automatic criminal justice, we may need to accept the limitations of the existing criminal procedure framework and deploy privacy and data protection law.
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.
The CoExistence of Copyright and Patent Laws to Protect InnovationA Case Study of 3D Printing in UK and Australian Law
Dinusha Mendis, Jane Nielsen, Diane Nicol, and Phoebe Li
The chapter considers the challenges faced by intellectual property (IP) laws, in particular copyright and patent laws, in responding to emerging technologies and innovation like 3D printing and scanning. It provides a brief introduction to 3D printing before moving to detailed analysis of relevant UK and Australian jurisprudence. Through this comparative analysis, the chapter explores whether copyright and patent laws can effectively protect innovation in this emerging technology, including consideration of both subsistence and infringement. The chapter suggests that 3D printing, like most other technologies, has a universal reach, yet subtle differences in the wording and interpretation of IP legislation between jurisdictions could lead to anomalies in levels of protection. It explores the possibility of a sui generis regime of IP protection for 3D printing, but submits that a nuanced reworking of existing regimes is, in the vast majority of circumstances, likely to be a sufficient response.
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.
This chapter examines the transformative effect of the Internet and the rise of computer technology on international organization of communications. It begins by describing the liberalization of telecommunication services, which provides the essential point of departure for understanding the contemporary situation. It then identifies key international organizations involved in Internet governance. This survey of organizations is heavily biased towards entities that are involved in Internet operations and governance. The next section puts this collection of organizations into motion by describing their power struggles over the control of the Internet. Along the way, the chapter invokes several theories of organization, such as regime theory, principal-agent concepts of delegation, and theories of networked governance derived from transaction cost theory.
This chapter documents the extreme stresses that cyberspace applies to state law by examining how private international law, or conflict of laws, has responded to the online global world. This highlights both the penetration of globalization into the ‘private’ sphere and the strongly ‘public’ or collective political nature of much of the ‘private’ ordering through national law. The chapter shows that the nation state is asserting itself against the very phenomenon—globalization (through cyberspace)—that threatens its existence, and does not shy away from accepting the fragmentation of this global cyberspace along traditional political boundaries as collateral damage to its own survival. Yet, the frequent appeal to international human rights normativity in recent conflicts jurisprudence suggests an awareness of the unsuitability and illegitimacy of nation state law for the global online world.
Many aspects of contract law, developed before the age of computer technology, require re-evaluation in the twenty-first century. The following matters will be considered: the postal acceptance rule in the digital age; e-mail messages, in particular whether a name or initial typed in the message constitutes a 'signature' for all purposes, and whether the sender's name in the address does so; clicking on a box on a computer screen as manifestation of assent, and whether it satisfies express statutory or contractual requirements of 'signature'; sealed instruments in the computer age; use of a website as manifestation of assent ('browse-wrap' so-called); and, more generally, problems of standard form contracts, consumer protection, and unfair terms, exacerbated (I would argue), though not originated, by computer technology. Illustrations are drawn both from English and from Canadian law.
Crime, Security, and Information Communication Technologies: The Changing Cybersecurity Threat Landscape and its Implications for Regulation and Policing
David S. Wall
Networked digital technologies have transformed crime to a point that ‘cybercrime’ is here to stay. In the future, society will be forced to respond to a broad variety of networked crimes that will increase both the complexity of crime investigation and prevention, whilst also deepening the regulative challenges. As cybercrime has become an inescapable feature of the Internet landscape, constructive management and system development to mitigate cybercrime threats and harms are imperatives. This chapter explores the changing cybersecurity threat landscape and its implications for regulation and policing. It considers how networked and digital technologies have affected society and crime; it identifies how the cybersecurity threat and crime landscape have changed and considers how digital technologies affect our ability to regulate them. It also suggests how we might understand cybercrime before outlining both the technological developments that will drive future cybercrime and also the consequences of failing to respond to those changes.
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.
Kenneth Anderson and Matthew C. Waxman
An international public debate over the law and ethics of autonomous weapon systems (AWS) has been underway since 2012, with those urging legal regulation of AWS under existing principles and requirements of the international law of armed conflict in argument with opponents who favour, instead, a preemptive international treaty ban on all such weapons. This chapter provides an introduction to this international debate, offering the main arguments on each side. These include disputes over defining an AWS, the morality and law of automated targeting and target selection by machine, and the interaction of humans and machines in the context of lethal weapons of war. Although the chapter concludes that a categorical ban on AWS is unjustified morally and legally—favouring the law of armed conflict’s existing case-by-case legal evaluation—it offers an exposition of arguments on each side of the AWS issue.
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 serves three objectives. First, it provides a narrative account of key developments in core bioengineering technologies. Second, it critically interrogates the emergence and evolution of regulatory regimes aimed at responding to perceived risks associated with these technological capabilities, highlighting how these have primarily relied on establishing ‘soft’ forms of control rather than hard edged legal frameworks backed by coercive sanctions, largely in the form of self-regulation by the scientific research community (with some notification provisions to keep the relevant government informed). Third, it provides an analysis of this regulatory evolution, focusing on the narrow construction of risk, and flagging up the possibility of alternative framings, which might have generated more inclusive and deliberative approaches to standard-setting and oversight.
Hacking Metaphors in the Anticipatory Governance of Emerging Technology: The Case of Regulating Robots
Meg Leta Jones and Jason Millar
Metaphors are essential tools for helping us to interpret new technologies, integrate them into our daily lives and govern them appropriately. Metaphors link the unfamiliar to the familiar. However, metaphors are often partial and unstable, especially in their application to emerging technologies, such as robots—robots are here, but we have yet to decide on the many roles that robots will occupy in society. Metaphors also tend to promote certain values over others. Applying a particular metaphor to a technology thus casts that technology in a political role. In this chapter, we promote metaphor hacking, a playful and practical methodology for identifying and analysing potential metaphors that might be applied in the governance of technology. We argue that metaphor hacking allows us to anticipate some of the governance and ethical issues that could emerge around a technology owing to the metaphors we choose for describing them.
Lee A. Bygrave
This chapter examines regulatory efforts to ensure that due account is taken of privacy and related interests in the development of information systems such that these interests are, in effect, integrated (or ‘hardwired’) into the resulting systems. Such efforts are typically described in terms of ‘Privacy by Design’ and ‘Data Protection by Design’. The basic argument advanced in the chapter is that such efforts are unlikely to gain broad traction, at least in the short term, despite current moves to provide them with increased legal support. This is due to a broad range of factors the most important of which is that any ambitious privacy-hardwiring efforts will clash with powerful business and state interests at the same time as they remain marginal to the concerns of most consumers and engineers. This marginality is exacerbated by poor communication of such efforts’ parameters, methodologies and requirements.
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.