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Legal battles loom as technological ubiquity creates tensions between privacy and security

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The battle between the FBI and Apple over the unlocking of a terrorist’s iPhone will likely require Congress to create new legislation. That’s because there really aren’t any existing laws that govern these technologies.

The battle is between security and privacy, with Silicon Valley fighting for privacy. The debates in Congress will be ugly, uninformed and emotional. Lawmakers won’t know which side to pick and will flip-flop between what lobbyists ask and the public’s fear du jour. And because there is no consensus on what is right or wrong, any decision they make today will likely be changed tomorrow.

This is a prelude of things to come, not only with encryption technologies, but everything from artificial intelligence to drones, robotics and synthetic biology. Technology is moving faster than our ability to understand it, and there is no consensus on what is ethical.

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It isn’t just the lawmakers who are not well-informed; the originators of the technologies themselves don’t understand the full ramifications of what they are creating. They may take strong positions today based on their emotions and financial interests, but as they learn more, they too will change their views.

It takes decades, sometimes centuries, to reach the type of consensus that is needed to enact the far-reaching legislation that Congress will have to consider. Laws are essentially codified ethics, a consensus that is reached by society on what is right and wrong. This happens only after people understand the issues and have seen the pros and cons.

Consider our laws on privacy. These date back to the late 1800s, when newspapers first started publishing gossip. They wrote a series of intrusive stories about Boston lawyer Samuel Warren and his family, which led his law partner, and future U.S. Supreme Court Justice Louis Brandeis, to write a Harvard Law Review article, “The Right of Privacy,” which argued for the right to be left alone.

This essay laid the foundation of American privacy law. It also took centuries to create today’s copyright laws, intangible property rights and contract law. All of these followed the development of technologies such as the printing press and steam engine.

How can our policymakers and institutions keep up with the advances when the originators of the technologies themselves can’t?

Today, technology is progressing on an exponential curve; advances that would take decades now happen in months. Consider that the first iPhone was released in June 2007 and has evolved into a device that captures our deepest personal secrets, keeps track of our lifestyles and habits and is becoming our health coach and mentor. It was inconceivable just five years ago that there could be such debates about unlocking this device.

A greater privacy risk than the lock on the iPhone are the cameras and sensors that are being placed everywhere. There are cameras on our roads, in public areas and malls and in office buildings. One company just announced that it is partnering with AT&T to track people’s travel patterns and behaviors through their mobile phones so that its billboards can display personalized ads. Billboards will also include cameras to watch the expressions of passersby.

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Cameras often record everything that is happening. Soon there will be cameras looking down at us from drones and in privately owned microsatellites. Our TVs, household appliances and self-driving cars will be watching us.

The cars will also keep logs of where we have been and make it possible to piece together who we have met and what we have done — just as our smartphones can already do. These technologies have major security risks and are largely unregulated. Each has its nuances and will require different policy considerations.

The next technology that will surprise, shock and scare the public is gene editing. CRISPR-Cas9 is a system for engineering genomes that was simultaneously developed by teams of scientists at different universities.

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This technology, which has become inexpensive enough for labs all over the world to use, allows the editing of genomes — the basic building blocks of life. It holds the promise of providing cures for genetic diseases, as well as creating drought resistant and high-yield plants and new sources of fuel. It can also be used to “edit” the genomes of animals and human beings.

China is leading the way in creating commercial applications for CRISPR, having edited goats, sheep, pigs, monkeys and dogs. It has given them larger muscles, more fur and meat and altered their shapes and sizes. Scientists demonstrated that these traits can be passed to future generations, thereby creating a new species. China sees this as a way to feed its billion people and provide it a global advantage.

China has also made progress in creating designer babies. In April 2015, scientists in China revealed that they had tried using CRISPR to edit the genomes of human embryos. Although these embryos could not develop to term, viable embryos could one day be engineered to cure disease or provide desirable traits. The risk is that geneticists with good intentions could mistakenly engineer changes in DNA that generate dangerous mutations and cause painful deaths.

In December 2015, an international group of scientists gathered at the National Academy of Sciences to call for a moratorium on making inheritable changes to the human genome until there is a “broad societal consensus about the appropriateness” of any proposed change.

But then this February, the British government announced that it has approved experiments by scientists at Francis Crick Institute to treat certain cases of infertility. I have little doubt that these scientists will not cross any ethical lines. But is there anything to stop governments themselves from surreptitiously working to develop a race of superhuman soldiers?

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The creators of these technologies usually don’t understand the long-term ramifications of what they are creating, and, when they do, it is often too late, as was the case with CRISPR. One of its inventors, Jennifer Doudna, wrote a touching essay in the December issue of Nature.

“I was regularly lying awake at night wondering whether I could justifiably stay out of an ethical storm that was brewing around a technology I had helped to create,” she lamented. She has called for human genome editing to “be on hold pending a broader societal discussion of the scientific and ethical issues surrounding such use.”

Laws are essentially codified ethics, a consensus that is reached by society on what is right and wrong.

A technology that is far from being a threat is artificial intelligence. Yet it is stirring deep fears. AI is, today, nothing more than brute force computing, with superfast computers crunching massive amounts of data. Yet it is advancing so fast that tech luminaries such as Elon Musk, Bill Gates and Stephen Hawking worry it will evolve beyond human capability and become an existential threat to mankind.

Others fear that it will create wholesale unemployment. Scientists are trying to come to a consensus about how AI can be used in a benevolent way, but, as with CRISPR, how can you regulate something that anyone, anywhere, can develop?

And soon, we will have robots that serve us and become our companions. These, too, will watch everything we do and raise new legal and ethical questions. They will evolve to the point that they seem human. What happens then, when a robot asks for the right to vote or kills a human in self-defense?

Thomas Jefferson said, in 1816, “Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.” But how can our policymakers and institutions keep up with the advances when the originators of the technologies themselves can’t?

There is no answer to this question.

Featured Image: Tori Rector/Flickr UNDER A CC BY-SA 2.0 LICENSE