How we talk about Data (the android) and what it means about us
October 13, 2011
Another post up at Fantasy Matters. Now with Star Trek references!
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In Not Only for Myself: Identity, Politics & Law, Martha Minow references a Star Trek: The Next Generation episode that I wanted to expand on in this entry.
Episode Synopsis
The episode, “The Measure of a Man”, centers on Data, an android. In the episode, a cybernetics specialist (and Starfleet Commander) requests permission from Captain Picard to disassemble Data for research purposes. The Commander explains that through the operation, he’ll (he hopes) finally acquire the knowledge necessary to mass-produce androids. The procedure, however, is not without risks. The Commander cannot guarantee that post-reassembly Data will retain memory of the “ephemeral” quality of his experiences. Upon realizing this, Data refuses to consent to the procedure. And, Captain Picard, Data’s superior officer, also refuses consent. Anticipating their less-than-enthusiastic response, the Commander produces transfer papers that place Data under his command. And, as Data’s new superior officer, orders him to undergo the procedure. Left with the unattractive choice of undergoing the procedure or quitting Starfleet, Data decides to quit. Furious and undeterred, the Commander argues that Data cannot quit Starfleet anymore than the ship’s central mainframe can; Data is property and property can’t quit. The on-site JAG officer agrees but Picard, also undeterred, demands a trial to challenge Data’s property designation.
At first, the courtroom debate is as you’d expect; the argument was whether Data was property or a person and so, both sides pointed to different facts about Data to prove their side. (“Data can be turned on and off by a switch, which makes him a machine, which makes him property.” “Yes, but Data also values friendship and keeps sentimental trinkets, so Data is really a person.”) But then, the strategy changes. Instead of focusing on facts about Data to prove his personhood, Data’s lawyer (Picard) reframes the entire question, asking instead what sort of people they wanted to be. On the cusp of potentially creating an entire race of androids, did they want to be the sort of people who would deny them personhood? The sort of people who would choose to look at an android who saw himself as a person and tell him he was mistaken? Is that who they wanted to be?
In the end, the court found Data to be a person. But, before leaving, Data tells the Commander that he will agree to the procedure once the Commander figures out how to ensure his safety, adding further that he finds the Commander’s research to be intriguing. In later episodes, Data and the Commander take up a correspondence, as equals.
Minow uses this scene to explore the idea that when we are not for others, we are capable of monstrous acts. Here, I bring it up instead to explore the multiple frameworks from which we can view difficult questions and the importance of utilizing each in our decision making process.
As I see it, there are two overarching deliberation frameworks highlighted in this episode:
- How we as a society make legal determinations and why that process matters.
- How individuals make decisions and the danger of individuals conflating and collapsing moral and ethical questions into legal ones (i.e. thinking that just because an option is legally permissible, they should do it.)
The significance of legal determinations
The episode powerfully illuminates that there are at least two distinct perspectives from which we can make legal arguments.
First, we see the traditional model. The question is whether Data is property and so both sides argue that, all of Data’s attributes considered, he’s more machine than person or more person than machine.
The second type of argument, the type Picard ends with, is radically different. Instead of making the legal determination based on facts about the thing being labeled (Data), the tables are turned and the judge is asked what the court’s decision says about them. To make a decision based not just on what Data is but based on what sort of people they wanted themselves to be.
Both types of arguments are powerful and important.
The first type of argument (pointing to facts about a person and making institutionally-supported conclusions based off them) unavoidably leads that individual, and those who share in his attributes, to internalize those determinations and, as a result, be shaped by them. Minow references a Washington Post article, “Stereotypes Within,” that captures how sixth graders have already internalized stereotypes about their own ethnic groups that greatly limit their sense of self and future opportunities. Picard makes a similar argument with regards to Data – by calling him property, they would preemptively deprive him the joys of self-discovery and creation. The point here is not that all institutionally-supported classifications are inherently bad, but just that they are powerful. Thus, we would do well to tread lightly.
The second argument reminds us that what the law is is a reflection on who we are and who we want to become. Minow emphasizes that when we are not for others we are capable of monstrous acts. This episode adds an interesting twist for it seems that sometimes focusing exclusively on others, by weighing factors about them, lends itself to our forgetting that we too are transformed by our decisions. In other words, at least sometimes, the winning argument may be a selfish one. What is best for us, Picard asks. Do we want to be monsters? We have to take care of ourselves by making decisions that help us become who we want to be, too.
The responsibility of the individual
As society is shaped by what it permits and prohibits, so too are individuals shaped by what they choose to do. An option being legally permissible is only the first step; the second harder and ennobling one is to then decide whether to not to actually pursue it. When we neglect the second question, we deprive ourselves of the blessing of being the sort of creature who has shaped herself by making choices she thought good.
Imagine that the court found Data to be property. If the Commander would have then disassembled him, we would still find the Commander morally repugnant. We condemn the society that says such behavior is permissible but we also separately judge the man who takes advantage of that opportunity.
The episode, and stories like it, helps us pull apart the many viewpoints from which we should examine our decisions. We can tear down or empower others with the law, our society is shaped in part by what we allow, and we as individuals are made by what we choose. We should, it is clear, take care.
Guest Blogging at Fantasy Matters
September 29, 2011
My first guest post is up over at Fantasy Matters. If you get a chance, take a look and leave a comment (leave the comment there, not here). For a bit of context for those of you who don’t already know — I’m at Harvard Law School and these posts are the product of my current independent study project.
I also highly recommend taking a look at some of the other discussions going on over there. It’s Banned Book Week and the posts and comments about the consequences of censorship are important, interesting stuff.
Published my first article!
July 17, 2011
I know I’ve been off the radar for a while but, to get things started again, I thought I’d share some great news — I just got my first article published! JOLT (Harvard’s Journal of Law and Technology) published a short piece by me entitled “Google+ Puts Premium on Privacy and Data Portability”, though I might suggest they change the name to something like “Google+ Puts Premium on Data Portability: But Is It Enough?”
The point of the article is straightforward: Google+, by simply entering the social networking market, is doing a lot of good for users. There’s increased focus on privacy and, given Google’s Data Liberation push, more about data portability. But, while that’s a step in the right direction, if we step back, it becomes clear that the real issue is that we keep giving incredible amounts of valuable personal information to a single company (be it Facebook, Google, Myspace, etc.). And, after we do that, we tend to feel locked in/invested in that company such that we are reluctant to leave it when either 1) they do something that upsets us or 2) we see another product that has the potential to be much better.
The same issue was seen with the recent Netflix price increase — everyone is pissed not only because price increases are always unpopular but because 1) there’s no good Netflix competitor (and thus it’s more difficult to voice discontent in a meaningful way [e.g., by switching providers]) and 2) even if there were a viable competitor, switching after a user has invested a non-trivial number of hours ranking movies in Netflix means losing out on a lot of earned value [surprisingly accurate movie recommendations].
In essence, a user information-based service like Netflix and Facebook gets stronger, and usually more valuable to users, the more data users feed it. This is a win-win until that service becomes so dominant that the incentives for innovation trail off and the concerns of, say, advertisers become more pressing than those of users. Because the user-side costs of switching are high, users feel locked in to a sub-par service. This locked-in feeling doesn’t just mean there’s less-than-ideal innovation in a field. Think about privacy as an example. For Fourth Amendment purposes, a persons “reasonable expectation of privacy” is crucial. Well, what’s reasonable? What someone thinks is reasonable tends to correspond quite highly with what they’re used to. Now, for instance, we all think it quite reasonable for our friends’ updates to show up on a constantly changing newsfeed on our Facebook front page. But, back when that feature was launched, people were up in arms; now, they can’t imagine Facebook without it. I’m not saying what Facebook or others have done is good or bad. But, it’s important for us to realize that users being locked in to these services might mean users forcing themselves to acclimate to things we might think not so great, and our conceptions of what is “reasonable” being shaped in non-ideal ways as a result. With competition, when we don’t like something we can act in meaningful ways to stop it — we up and leave.
I pose one solution in the article, but I’d be interested to hear your thoughts! Feel free to post your comment directly on JOLT’s site or email me directly.
Current Controversies in Food and Drug Law
January 18, 2011
I recently attended a panel on “Current Controversies in Food and Drug Law” and thought I’d jot down a few notes to share with those of you back home (who, obviously, are dying to learn more about the strage exciting world of food and drug law.)
Panelists
Peter Hutt - Current HLS Professor (former FDA general counsel, teaches a Food and Drug Law course every winter)
Mark Raza - Senior Counsel at FDA’s Office of the Chief Counsel
Kirsten Mayer - Ropes and Gray counsel with all sorts of medical and science-related clients
Each panelist had a chance to stand up and discuss in a few minutes what they took to be some of the biggest challenges the FDA currently faces, and while I am not mean an expert I’ll try and lay out a few of the concerns raised:
- Hutt brought up some economic incentive difficulties based on the duration of patents coupled with the significant amount of time it takes to get through FDA approvals. [from my understanding the issue is: patents run for either 14 or 20 years. You file for a patent fairly early in the game (long before you’ve even gone through clinical trials, let alone gotten approval to actually market and sell. So, by the time you get through all the FDA hurdles for approval, you typically only have 11 or 12 years left on the patent — which for a lot of companies isn’t enough time to fully recoup costs and make the sort of profit that incentives companies to invest in the R&D to begin with. So, unless you have a blockbuster, it isn’t worth it for a lot of companies.)
- Raz, changing gears, talked about biosimilars and the regulatory difficulties there (a topic on which the FDA had a two-day meeting back in September). As a bit of background, biosimilars are what they sound like — they are (if I understand correctly — and I’m sure Chris will read this and correct me if I’m wrong) basically molecularly identical to some drug that was already approved, but they are created by another lab, under non-identical conditions, at a time after the original patent has expired. One of the big questions is what sort of testing should these biosimilars have to go through before getting FDA approval. On one hand, they’re basically the same as something already on the market (think of a certain active ingredient in both a name brand drug and some generic) so it seems redundant. On the other hand, we don’t know how much other factors come into how that drug will actually perform. So for instance, with different manufacturing processes they might have different impurities or slight differences at some level — and that in turn may have a profound effect on how that drug is digested in the body.
- Mayer went last and it turns out her issues ended up dominating the rest of the discussion: Off-label marketing. So, in a few sentences what is that all about? Well, from what I understand it goes like this: The FDA approves a drug for a specific use. The manufacture of that drug is then allowed to promote (market) the use of that drug to doctors and the like for just that use. However, it turns out that a drug might be approved to deal with one condition but actually is really great to use in another as well. How do we know this? Well, the drug company might be sponsoring studies to explore that or doctors have recognized relationship in underlying pathology between the condition it was approved for and another condition and then decided to conduct trials of their own (this sometimes happens at university hospitals for people who are basically out of options and are willing to try anything), etc. The issue is: even if it turns out the drug is really useful for another condition, the manufacturer cannot promote/market the use of the drug for that other condition. It is criminal to do so. But, notwithstanding the serious criminal penalties (let alone the absolutely enormous fines companies have paid for doing so) they still do promote off-label use in some cases. Mayer brought up the argument that such off-label marketing prosecution may (1) have some pragmatic issues but more interestingly (to me) (2) may run afoul of Free Speech protection.
So, having not taken ConLaw I will say just a few sentences and see if others have thoughts on all this. The argument seems to be as follows: It’s granted that while we have freedom of speech not all speech is protected (can’t yell “fire” in theatre, can’t slander someone and expect that to be protected, etc.) The government argues that there is no First Amendment issue because 1) the regulations prohibit the promotion by manufacturers of off-label marketing, so for the manufacturer to do so would be an unlawful activity and 2) the speech (which I guess is just the marketing tactics) are just used to establish intent — the intent to commit the unlawful activity. [I think that’s right… though it is a bit confusing to me]
The issue with that line of arguments however is that the promotion of off-label use isn’t prohibited, period. In fact, anyone but the manufacturer can promote the use of the drug in an off-label way. As Mayer points out, if the NYtimes wants to write a bit piece on the virtues of the off-label use of x drug, it can do so under the law. So, it cannot be that the speech itself is an illegal activity; it’s only the speech itself coming from the manufacturer that’s prohibited — and that seems to be a First Amendment issue.
What this made me think of was the Citizens United case. The more we think of companies through the personhood metaphor, the more these free speech for the company issues come up.
Anyway, I must run and do actual class readings but just thought I’d lay out a few of the things I heard. If I can better clarify the last argument in the future, I’ll be sure and do so… and soon!