July 2019 stlmag.com
- INVASION OF THE
PRIVACY SNATCHERS -
Fifteen years ago, there wasn’t enough
work in privacy law to merit more than
the occasional symposium. Now priva-
cy’s a full-fledged specialty, filling law
school courses and creating jobs. Why?
Because “privacy” is the catchall for the
theft and manipulation of personal data
that technology has made ubiquitous.
And once again, our laws haven’t
caught up. “Laws are based on assump-
tions about the way our lives work, and
technology has undermined a lot of that,”
explains Neil Richards, a Wash. U. law
professor who co-directs the new Cordell
Institute for Policy in Medicine & Law.
“Imagine if J.K. Rowling had been writ-
ing a documentary. If it turned out that
there were wizards among us who could
do things we couldn’t, we would regulate
the use of those magical powers.”
Well, now that some of us can edit
genomes or design self-driving cars or
hack into the power grid or the stock
market, and nearly all of us can zap
images and videos across the globe in
a matter of seconds or solve a riddle by
asking a robot or prove an alibi with our
phone’s location log...
It might be time for a little regulation.
“We need strategies at every level of
society to take advantage of the magi-
cal potential of new technologies,” says
Richards, “and at the same time guard
against some chilling possibilities.”
Precision medicine—which can not
only tailor medicines and dosages to a
particular individual but also edit that
individual’s genome or the genome of
the cancer that’s attacking it—requires
us to divulge the very sequence of our
DNA. Surveillance and facial recogni-
tion cameras track our movements;
consumer data collection profiles our
behavior; robots will soon be serving us
food and helping us with the most inti-
mate self-care as we age. Job-stealing
robots, sex robots, and killer robots
already walk (or roll) among us. Yet there
are precious few laws geared to this new
world, let alone laws written in a way that
will keep up with its constant and accel-
erating change.
Automation even threatens the pro-
fession of law itself. “I think privacy law-
yers are OK,” Richards says dryly, “but
the others are all in trouble.” The patient
review of hundreds of documents that
has taught students and law clerks the
intricacies of case law? All anybody needs
now is a scanner and a good algorithm.
“Large chunks of our economy are
going to be disrupted,” Richards contin-
ues. “Entire categories of jobs will cease
to exist—and we should not expect law-
makers to wave a wand and immedi-
ately produce laws that will solve our
problems.” It took us more than a cen-
tury to accumulate laws that made the
Industrial Revolution’s mass-produced
goods and automobiles safer and pro-
tect the workers who assembled them,
he points out—and we’re not done yet.
The Information Revolution is chang-
ing society far faster, and making laws
that will remain responsive as tech-
nology evolves “requires a consensus
about the right way to respond. If we’re
concerned about losing jobs, do we ban
self-driving long-haul trucks? Do we
mandate retraining for their drivers?
Or do we just say that the free market
has spoken?”
Tech is blowing open a million possi-
bilities. Once we put our genomes into
a database, what happens when they’re
required for citizenship applications
or employment health screenings? If
somebody orders a sex robot custom-
designed to look like his neighbor’s wife,
is that an invasion of her privacy? If the
robot is able to learn and make deci-
sions, does it have any rights?
“Some fine-grained regulation is going
to be necessary,” Richards says quietly.
He suggests flexible standards rather
than specific rigid rules. “Our legal sys-
tem is a combination of the two. And
when it comes to changing technologies,standards work better.” For example,
the Fourth Amendment sets a standard
that protects all citizens from “unrea-
sonable searches and seizures” with-
out probable cause. There’s a rule that
allows police to access data from cell-
phone companies, but that rule didn’t
foresee a time when all your location
information would be logged on your
phone. The standard would require
police to have a warrant to obtain that
data rather than handing them a carte
blanche ability to track anyone’s move-
ments for years at a stretch.
“Another strategy would be to regu-
late social practices” rather than prod-
ucts or devices, Richards says. “We
regulate video rentals, not video tapes.
The form of delivery changed to stream-
ing, but the basic social activity of watch-
ing a movie in the privacy of your own
home has not changed.”
When it comes to a change as profound
as editing the genome of an unborn child,
though, we’ll need to think a lot harder, he
says: “What level are we going to allow?
The prevention of hereditary disease?
The creation of a superhuman?”
If he could wave his wand, what single
law would he write? “I’d produce a gener-
ally applicable baseline consumer privacy
law for the U.S. Every other industrialized
democracy in the world has one.” If we
had meaningful privacy protection, the
rest of the world would trust us to trade
personal information across borders, cre-
ating genomic databases that can unlock
cures to devastating diseases. “There
would also be more sharing of informa-
tion without the fear of hacking, misuse,
betrayal, fake news, electronic theft. And
it would keep the government in check
in its surveillance of criminal suspects.”
His model is the General Data Protec-
tion Regulation used in the European
Union “but tailored to American tradi-
tions of political and social engagement
and freedom of speech. Americans are
typically a little more in favor of limited
regulation for business—but that doesn’t
mean there should be no regulation.”
What’s truly urgent, Richards con-
cludes, are issues of cybersecurity, cyber-
warfare, bioweapons. We haven’t paid
enough attention, because “we haven’t
had our digital 9/11 or our digital Pearl
Harbor yet...and I think that’s coming.”“WE NEED
STRATEGIES AT
EVERY LEVEL OF
SOCIETY TO TAKE
ADVANTAGE OF
THE MAGICAL
POTENTIAL OF NEW
TECHNOLOGIES.”