To: Professor Friedman

From: Bryan Kohm

Date: 4/9/04

Re: Nanotech research

Privacy and Personal Invasion Issues

Nanotechnology seriously threatens personal privacy. It presents the possibility of subjecting average citizens, or anyone for that matter, to undetectable surveillance. This may come in the form of microscopic cameras, listening devices, etc. Although many surveillance devices exist today that make it difficult to have privacy in certain areas, nanotechnology would extend that surveillance into every possible realm of life. For example, it is far from uncommon to see surveillance cameras attached to stop lights or in any public place (especially commercial areas). However, with nanotechnology, this could occur in our homes, offices or cars and we would not even know the cameras are there.

As mentioned above, surveillance is nothing new and, accordingly, laws protecting citizens from surveillance are not either. In Ex parte Jackson, the Supreme Court extended Fourth Amendment protection to cover the unauthorized reading of one’s mail.[1] Similar protection was provided to telephone calls in 1967 when the Supreme Court held that a federal agency’s (FBI in this case) bugging of a telephone booth constituted an illegal search and seizure in violation of the Fourth Amendment.[2]

The Fourth Amendment will obviously apply to nanotech surveillance devices as well. Although it will be nearly impossible to ever detect when a person is being monitored, the result is not dire. In fact, it will be very similar to wiretapping. Surveillance will occur without people’s knowledge, but at least evidence obtained from illegal surveillance will be inadmissible.

The Fourth Amendment provides in pertinent part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[3] There are three important issues here. Generally, “unreasonable” has been interpreted to mean probable cause or that a person should not expect privacy under the circumstances. Homes are places where the reasonable expectation of privacy exists, as well as telephone lines. Privacy is not expected, however, in public places. Since this is not an issue unique to nanotech, I will not address it further.

A “seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in some property that property.”[4] In the case of nanotech surveillance devices, property will not be taken from the victim. Luckily for us, actual physical possession is not required for Fourth Amendment purposes. However, some sort of demonstration or claim of authority is required.[5] An example of this would be when a police officer enters a house and takes control of it, not allowing people to enter or leave.[6]

A case that has serious nanotechnology implications is United States v. Karo.[7] In that case, the authorities placed a tracking device (called “beeper” in the decision) inside of a can of ether. They followed the can to a private residence, searched the house, and uncovered a substantial portion of illegal drugs.[8] Although the Court did not suppress the evidence in the end due to its finding probable cause elsewhere, the Court noted that the monitoring of the tracking device while it was located inside of a private residence violated the Fourth Amendment rights of the defendant.[9]

The Supreme Court has been quite protective of private residences and people’s bodies. The same rules will be applied to nanotech surveillance devices. So, introducing nanotech devices, without the consent of the necessary person, will violate the Fourth Amendment. The problem of detecting the devices to know that you are being monitored will remain, but at least the evidence will not be admissible in court.

Regulation of Nanotechnology

The regulation of nanotechnology, in regard to research and the technology itself, stands as its most immediate legal issue. Due to the concerns of the potential danger that nanotechnology may pose, terrorists or accidental grey goo, many people argue that regulation must begin now.[10] In regard to development regulations, comparisons have been made to that of nuclear research.[11] However, some scholars on the issue argue that limiting research to controlled federal facilities is unlikely.[12] Basically, they argue that the facilities required, unlike nuclear research, would not be that extravagant.[13] Regulation of the actual technology after it exists seems almost unfathomable. Possible ways would be to control the production, but eventually someone will be able to do it on a black market.[14]

The Foresight Institute has created the Foresight Guidelines on Molecular Nanotechnology. These guidelines provide suggestions for the approach to nanotechnology regulation and in doing so provide a general summary of the issues posed. The link for the guidelines is as follows: http://www.foresight.org/guidelines/current.html. I would attach them to this summary, but they expressly request that they not be republished without permission.

[4] United States v. Jacobsen, 466 U.S. 109, 113 (1984).

[5] United States v. Letsinger, 93 F.3d 140, 143 (4th Cir. 1996).

[6] United States v. Perdomo, 800 F.2d 916, 918 (9th Cir. 1986).

[7] United States v. Karo, 468 U.S. 705, 712-13 (1984).

[10] Center for Responsible Nanotechnology, http://crnano.org/dangers.htm.