Draft: 3/10/07
A few years ago I attended an event where the guest speaker was a cabinet member. In conversation afterwards, the subject of long term petroleum supplies came up. He warned that at some point, perhaps a century or so in the future, someone would put his key in his car's ignition, turn it, and nothing would happen–because there would be no more gasoline.
What shocked me was not his ignorance of the economics of depletable resources--if we ever run out of gasoline it will be a long slow process of steadily rising prices, not a sudden surprise--but the astonishing conservatism of his view of the future. It was as if a similar official, a hundred years earlier, had warned that by sometime around the year 2000 the streets would be so clogged with horse manure as to have become impassible. I do not know what the world will be like a century hence. But it is not likely to be a place where the process of getting from here to there begins by putting a key in an ignition, turning it, and starting an internal combustion engine burning gasoline.
This book is about technological change, its consequences and how to deal with them. This chapter briefly surveys the technologies. The next discusses how to adjust our lives and institutions to their consequences.
I am not a prophet; any one of the technologies I discuss may turn out to be a wet firecracker. It only takes one that does not to remake the world. Looking at some candidates will make us a little better prepared if one of those revolutions happens. Perhaps more important, after we have thought about how to adapt to any of ten possible revolutions, we will at least have a head start when the eleventh drops on us out of the blue.
Much of the book grew out of a seminar I teach at the law school of Santa Clara University. Each Thursday we discuss a technology that I am willing to argue, at least for a week, will revolutionize the world. On Sunday students email me legal issues that revolution will raise, to be put on the class web page for other students to read. Tuesday we discuss the issues and how to deal with them. Next Thursday a new technology and a new revolution. Nanotech has just turned the world into gray goo; it must be March.
Since the book was conceived in a law school, many of my examples deal with the problem of adapting legal institutions to new technology. But that is accident, not essence. The technologies that require changes in our legal rules will affect not only law but marriage, parenting, political institutions, businesses, life, death and much else.
We start with three technologies relevant to privacy–one that radically increases it, two that radically decrease it.
Now You Have It, Now You Don't
Public Key encryption makes possible untraceable communications intelligible only to the intended recipient. My digital signature demonstrates that I am the same online persona you dealt with yesterday and your colleague dealt with last year, with no need for either of you to know such irrelevant details as age, sex, or what continent I am living on. The combination of computer networking and public key encryption makes possible a level of privacy humans have never known, an online world where people have both identity and anonymity–simultaneously. One implication is free speech protected by the laws of mathematics, arguably more reliable and certainly with broader jurisdiction than the Supreme Court. Another is the possibility of criminal enterprises with brand name reputation–online pirate archives selling other people's intellectual property for a penny on the dollar, temp agencies renting out the services of forgers and hit men.
On the other hand …
In the not too distant future you may be able to buy an inexpensive video camera with the size and aerodynamic characteristics of a mosquito. Even earlier, we will see–are already seeing–the proliferation of cameras on lamp posts designed to deter crime. Ultimately this could lead to a society where nothing is private. Science fiction writer David Brin has argued that the best solution available will be not privacy but universal transparency–a world where everyone can watch everyone else. The police are watching you–but someone is watching them.
It used to be that a city was more private than a village, not because nobody could see what you were doing but because nobody could keep track of what everybody was doing. That sort of privacy cannot survive modern data processing. The computer on which I am writing these words has sufficient storage capacity to hold at least a modest amount of information about every human being in the U.S. and enough processing power to quickly locate any one of those by name or characteristics. From that fact arises the issue of who has what rights with regard to information about me presently in the hands, and minds, of other people.
Put all of these technologies together and we may end up with a world where your realspace identity is entirely public, with everything about you known and readily accessible, while your cyberspace activities, and information about them, are entirely private--with you in control of the link between your cyberspace persona and your realspace identity.
The world that encryption and networking creates requires a way of making payments–ideally without having to reveal the identity of payer or payee. The solution, already worked out in theory but not yet fully implemented, is ecash–electronic money, privately produced, potentially untraceable. One minor implication is that money laundering laws become unenforceable, since large sums can be transferred by simply sending the recipient an email.
A world of strong privacy requires some way of enforcing agreements; how do you sue someone for breach of contract when you have no idea who, where or what (s)he is? That and related problems lead us to a legal technology in which legal rules are privately created and enforced by reputational sanctions. It is an ancient technology, going back at least to the privately enforced Lex Mercantoria from which modern commercial law evolved.[1] But for most modern readers, including most lawyers and law professors, it will be new.
Property online is largely intellectual property, which raises the problem of how to protect it in a world where copyright law is becoming unenforceable. One possibility is to substitute technological for legal protection. A program or database comes inside a piece of software–Intertrust called it a digibox–that regulates its use. To run the program or query the database costs ten cents of ecash, instantly transmitted over the net to the copyright owner.
Finally and perhaps most radically, a world of fast, cheap, communication greatly facilitates decentralized approaches to production. One possible result is to shift substantial amounts of human effort out of the context of hierarchically organized corporations into some mix of marketplace coordination of individuals or small firms and the sort of voluntary cooperation, without explicit markets, of which open source software development is a recent and striking example.
Some technologies make the job of law enforcement harder. Others make it easier–even too easy. A few years ago, when the FBI was pushing the digital wiretap bill[2] through Congress, critics pointed out that the capacity they were demanding the phone companies provide them added up to the ability to tap more than a million telephones–simultaneously.
We still do not know if they intend to do it, but it is becoming increasingly clear that if they want to, they can. The major cost of a wiretap is labor. As software designed to let people dictate to their computers gets better, that someone can be a computer converting conversation to text, searching the text for key words or phrases, and reporting the occasional hit to a human being. Computers work cheap.
In addition to providing police new tools for enforcing the law, computers also raise numerous problems for both defining and preventing crimes. Consider the question of how the law should classify a "computer break-in"–which consists, not of anyone actually breaking into anything, but of one computer sending messages to another and getting messages in reply. Or consider the potential for applying the classical salami technique–stealing a very small amount of money from each of a very large number of people–in a world where tens of millions of people linked to the internet have software on their computers designed to pay bills online.
The technologies in our next cluster are biological. Two–paternity testing and in vitro fertilization–have already abolished several of the facts on which the past thousand years of family law are based. It is no longer only a wise child who knows his father–any child can do it, given access to tissue samples and a decent lab. And it is no longer the case that the woman from whose body an infant is born is necessarily its mother. The law has begun to adjust. One interesting question that remains is to what degree we will restructure our mating patterns to take advantage of changes in the technology of producing babies.
A little further into the future are technologies to give us control over our children's genetic heritage. My favorite is the libertarian eugenics sketched decades ago by science fiction author Robert Heinlein–technologies that permit each couple to choose, from among the children they might have, which ones they do have, selecting the egg that does not carry the mother's tendency to nearsightedness to combine with the sperm that does not carry the father's heritage of a bad heart. Run that process through five or ten generations with a fair fraction of the population participating and you get a substantial change in the human gene pool. Alternatively, if we learn enough to do cut and paste genetic engineering, we can forget about the wait and do the whole job in one generation.
Skip next from the beginning of life to the end. Given the rate of progress in biological knowledge over the past century, there is no reason to assume that the problem of aging will remain insoluble. Since the payoff is not only enormously large but goes most immediately to the currently old, some of whom are also rich and powerful, if it can be solved it is likely that it will be.
In one sense it already has been. There are currently more than a hundred people[3] whose bodies are not growing older–because they are frozen, held at the temperature of liquid nitrogen. All are legally dead. But their hope in arranging their current status was that it would not be permanent, that with sufficient medical progress it will some day be possible to revive them. If it begins to look as though they are going to win their bet we will have to think seriously about adapting laws and institutions to a world where there is an intermediate state between alive and dead and quite a lot of people are in it.
Finally we come to three technologies whose effects, if they occur, are sufficiently extreme that all bets are off, with both the extinction and the radical alteration of our species real possibilities within the lifespan of most of the people reading this book.
One such is nanotechnology–the ability to engineer objects at the atomic scale, to build machines whose parts are single atoms. That is the way living things are engineered: A DNA strand or an enzyme is a molecular machine. If we get good enough at working with very small objects to do it ourselves, possibilities range from microscopic cell repair machines that go through a human body fixing everything that is wrong to microscopic self-replicating creatures dedicated to turning the entire world into copies of themselves–known in nanocircles as the "gray goo" scenario.
Artificial intelligence might beat nanotech in the annihilation stakes–or in making heaven on earth. Raymond Kurzweil, a well informed computer insider, estimates that in about thirty years there will be programmed computers with human level intelligence. [Check timing]At first glance that suggests a world of science fiction robots–if we are lucky, obeying us and doing the dirty work. But if in thirty years computers are as smart as we are and if current rates of improvement–for computers but not for humans–continue, that means that in forty years we will be sharing the planet with beings at least as much smarter than we are as we are smarter than chimpanzees.[4] Kurzweil's solution is for us to get smarter too–to learn to do part of our thinking in silicon. That could give us a very strange world–populated by humans, human/machine combinations, machines programmed with the contents of a human mind that think they are that human, machines that have evolved their own intelligence, and much else.
The final technology is virtual reality. Present versions use the brute force approach: feed images through goggles and headphones to eyes and ears. But if we can crack the dreaming problem, figure out how our nervous system encodes the data that reaches our minds as sensory perceptions, goggles and headphones will no longer be necessary. Plug a cable into a socket at the back of your neck for full sense perception of a reality observed by mechanical sensors, generated by a computer, or recorded from another brain.
The immediate payoff is that the blind will see–through video cameras–and the deaf hear. The longer run may be a world where most of the important stuff consists of signals moving from one brain to another over a network, with physical acts by physical bodies playing only a minor role. To visit a friend in England there is no need to move either his body or mine–being there is as easy as dialing the phone. That is one of many reasons why I do not expect gasoline powered automobiles to play a major role in transportation a century from now.
A few pages back, we were considering a world where realspace was entirely public, cyberspace entirely private. As things presently are, that would be a very public world, since most of us live most of our lives in realspace. But if deep VR gives us a world where all the interesting stuff happens in cyberspace and realspace activity consist of little more than keeping our bodies alive, it could be a very private world.
Having labeled the section science fiction, I could not resist adding a chapter on ways in which current and near future technologies may make possible the old sf dream--space travel, space habitats, in time, perhaps, the stars.
Any of the futures I have just sketched might happen, but not all. If nanotech turns the world into gray goo in 2030, it will also turn into gray goo the computers on which artificial super intelligences would have been developed in 2040. If nanotech bogs down and A.I. does not, the programmed computers that rule the world of 2040 may be more interested in their own views of how the human species should evolve than in our view of what sort of children we want to have. And, closer to home, if strong private encryption is built into our communication systems, with the encryption and decryption under the control not of the network but of the individuals communicating with each other–the National Security Agency's nightmare for the past twenty years or so–it won't matter how many telephone lines the FBI can tap.
That is one reason this book is not prophecy. I expect parts of what I describe to happen but I do not know which parts. My purpose is not to predict which future we will get but to use possible futures to think about how technological change will affect us and how we can and should change our lives and institutions to adapt to it.
That is also one reason why, with a few exceptions, I have limited my discussion of the future to the next thirty years or so. That is roughly the point at which both A.I. and nanotech begin to matter. It is also long enough to permit technologies that have not yet attracted my attention to start to play an important role. Beyond that my crystal ball, badly blurred at best, becomes useless; the further future dissolves into mist.
New technologies change what we can do. Sometimes they make what we want to do easier. After writing a book with a word processor, one wonders how it was ever done without one. Sometimes they make what someone else is doing easier–and make it harder for us to prevent him from doing it. Enforcing copyright law became more difficult when photo typesetting made the cost of producing a pirate edition lower than the cost of the authorized edition it competed with, and more difficult again when inexpensive copying put the tools of piracy in the hands of any college professor in search of reading material for his students. As microphones and video cameras become smaller and cheaper, preventing other people from spying on me becomes harder.
The obvious response is to try to keep doing what we have been doing. If that is easier; good. If it is harder, too bad. The world must go on, the law must be enforced. "Damn the torpedoes, full speed ahead."
Obvious–and wrong. The laws we have, the ways we do things, are not handed down from heaven on tablets of stone. They are human contrivances, solutions to particular problems, ways of accomplishing particular ends. If technological change makes a law hard to enforce, the best solution is sometimes to stop enforcing it. There may be other ways of accomplishing the same end–including some enabled by the same technological change. The question is not "how do we continue to do what we have been doing" but "how do we best achieve our objectives under new circumstances?"
Insofar as this book has a theme, that is it.
Copyright law gives the author of a copyrightable work the right to control who copies it. If copying a book requires an expensive printing plant operating on a large scale, that right is reasonably easy to enforce. If every reader owns equipment that can make a perfect copy of a book at negligible cost, enforcing the law becomes very nearly impossible.
So far as printed material is concerned, copyright law has become less enforceable over the past century but not yet unenforceable. The copying machines most of us have access to can reproduce a book, but the cost is comparable to the cost of buying the book and the quality worse. Copyright law in printed works can still be enforced, even if less easily than in the past.
The same is not true for intellectual property in digital form. Anyone with a CDR drive can copy a four hundred dollar program onto a one dollar CD. Anyone with a reasonably fast internet connection can copy anything available online, anywhere in the world, to his hard drive.
Under those circumstances enforcing copyright law against individual users is very nearly impossible. If my university decides to save on its software budget by buying one copy of Microsoft Office and making lots of copies, a discontented employee with Bill Gates' email address could get us in a lot of trouble. But if I choose to provide copies to my wife and children–which under Microsoft's license I am not permitted to do–or even to a dozen of my friends, there is in practice little that Microsoft can do about it.[5]
That could be changed. If we wanted to enforce present law badly enough, we could do it. Every computer in the country would be subject to random search. Anyone found with an unlicensed copy of software would go straight to jail. Silicon valley would empty and the prisons would fill with geeks, teenagers, and children.
Nobody regards that as a tolerable solution to the problem. Although there has been some shift recently in the direction of expanded criminal liability for copyright infringement,[6] software companies for the most part take it for granted that they cannot use the law to prevent individual copying of their programs and so have fallen back on other ways of getting rewarded for their efforts.
Holders of music copyrights face similar problems. As ownership of tape recorders became common, piracy became easier. Shifting to CD's temporarily restored the balance, since they provided higher quality than tape and were expensive to copy–but then cheap CD recorders and digital audio tape came along. Most recently, as computer networks have gotten faster, storage cheaper, and digital compression more efficient, the threat has been from online distribution of MP3 files encoding copyrighted songs.
Faced with the inability to enforce copyright law against individuals, what are copyright holders to do? There are at least three answers:
1. Substitute technological protection for legal protection.
In the early days of home computers, some companies sold their programs on disks designed to be uncopyable. Consumers found that inconvenient, either because they wanted to make copies for their friends or because they wanted to make backup copies for themselves. So other software companies sold programs designed to copy the copy protected disks. One company produced a program–SuperUtility Plus–designed to do a variety of useful things, including copying other companies' protected disks. It was itself copy protected. So another company produced a program–SuperDuper–whose sole function in life was to make copies of SuperUtility Plus.
Technological protection continues in a variety of forms. All face a common problem. It is fairly easy to provide protection sufficient to keep the average user from using software in ways in which the producer does not want him to use it. It is very hard to provide protection adequate against an expert. And one of the things experts can do is to make their expertise available to the average user in the form of software designed to defeat protection schemes.
This suggests a possible solution: technological protection backed up by legal protection against software designed to defeat it. In the early years, providers of copy protection tried that approach. They sued the makers of software designed to break the protection, arguing that they were guilty of contributory infringement (helping other people copy copyrighted material), direct infringement (copying and modifying the protection software in the process of learning how to defeat it) and violation of the licensing terms under which the protection software was sold. They lost.[7]
More recently, owners of intellectual property successfully supported new legislation–Section 1201 of the Digital Millennium Copyright Act–which reverses that result, making it illegal to produce or distribute software whose primary purpose is defeating technological protection. It remains to be seen whether or not that restriction will itself prove enforceable.[8]
2. Control only large scale copying:
Anyone with a video recorder, some additional hardware and a little expertise can copy videos for his friends.[9] Nonetheless, video rental stores remain in business. They inexpensively provide their customers with an enormously larger selection than they could get by copying their friends' cassettes. The stores themselves cannot safely violate copyright law, buying one cassette for a hundred outlets, because they are large, visible organizations. So producers of movies continue to get revenue from video cassettes despite the ability of customers to copy them.
There is no practical way for music companies to prevent one teenager from making copies of a CD or a collection of MP3's for his friends–but consumers of music are willing to pay for the much wider range of choice available from a store. The reason Napster threatened the music industry was that it provided a similar range of choice at a much lower cost. Similarly for software. As long as copyright law can be used to prevent large scale piracy, customers will be willing to pay for the convenience provided by a legal, hence large scale and public, source for their software. In both cases, the ability of owners of intellectual property to make piracy inconvenient enough to keep themselves in business is threatened by the internet, which offers the possibility of large scale public distribution of pirated music and software.
3. Permit copying; get revenues in other ways:
"Most successful lecturers will
in whispered tones confide to you that there is no other journalistic or
pedagogical activity more remunerative–a point made by Mark Twain and
Winston Churchill."
(William F. Buckley, Jr.)[10]
A century ago, prominent authors got a good deal of their income from public lectures. Judging by the quote from Buckley—and my own experience–some still do. That suggests that, in a world without enforceable copyright, some authors could write books, provide them online to anyone who wanted them, and make their living selling services to their readers–public lectures, consulting services, or the like. This is not a purely conjectural possibility. Currently I provide the full text of three books and numerous articles on my web page, for free–and receive a wide range of benefits, monetary and non-monetary, by doing so.
This is one example of a more general strategy: Give away the intellectual property and get your income from it indirectly. That is how both of the leading web browsers are provided. Netscape gives away Navigator and sells the server software that Navigator interacts with; Microsoft follows a similar strategy. Apple provides a competing browser--which is available for free, but only runs on Apple computers. It is also how radio and television programs pay their bills; give away the program and get revenue from the ads.
[Revise to fit current
situation--firefox, Mozilla, …]
As these examples show, the death of copyright does not mean the death of intellectual property. It does mean that producers of intellectual property must find other ways of getting paid for their work. The first step is recognizing that, in the long run, simply enforcing existing law is not going to be an option.
A newspaper publishes an article asserting that I am a wanted criminal, having masterminded several notorious terrorist attacks. Colleagues find themselves engaged when I propose going out to dinner. My department chair assigns me to teach a course on Sunday mornings with an enrollment of one. I start getting anonymous phone calls. My recourse under current law is to sue the paper for libel, forcing them to retract their false claims and compensate me for damage done.
Implicit in the legal solution to defamation are two assumptions. One is that when someone makes a false statement to enough people to do serious damage, the victim can identify either the person who made the statement or someone else responsible for his making it–the newspaper if not the author. The other is that at least one of the people identified as responsible will have enough assets to be worth suing.
In the world of twenty years ago, both assumptions were usually true. The reporter who wrote a defamatory article might be too poor to be worth suing, but the newspaper that published it was not–and could reasonably be held responsible for what it printed. It was possible to libel someone by a mass mailing of anonymous letters, but a lot of trouble to do it on a large enough scale to matter to most victims.
Neither is true any longer. It is possible, with minimal ingenuity, to get access to the internet without identifying yourself. With a little more technical expertise, it is possible to communicate online through intermediaries–anonymous remailers–in such a way that the message cannot be linked to the sender. Once online, there are ways to communicate with large numbers of people at near zero cost: mass email, posts on Usenet news, a page on the worldwide web. And if you choose to abandon anonymity and spread lies under your own name, access to the internet is so inexpensive that it is readily available to people without enough assets to be worth suing.
One possible response is that we must enforce the law–whatever it takes. If the originator of the defamation is anonymous or poor, find someone else, somewhere in the chain of causation, who is neither. In practice, that probably means identifying the internet service provider through whom the message passed and holding him liable. A web page is hosted on some machine somewhere; someone owns it. An email came at some point from a mail server; someone owns that.
That solution makes no more sense than holding the U.S. Post Office liable for anonymous letters. The publisher of a newspaper can reasonably be expected to know what is appearing in his pages. But an ISP has no practical way to monitor the enormous flow of information that passes through its servers–and if it could, we wouldn't want it to. We can–in the context of copyright infringement we do–set up procedures under which an ISP can be required to take down webbed material. But that does no good against a Usenet post, mass email, webbed defamation hosted in places reluctant to enforce U.S. law, or defamers willing to go to the trouble of hosting their web pages on multiple servers, shifting from one to another as necessary. Defamation law is of very limited use for preventing online defamation.
There is–has always been–another solution to the problem. When people tell lies about me, I answer them. The technological developments that make defamation law unenforceable online also make possible superb tools for answering lies and thus provide a substitute, arguably a superior substitute, for legal protection.
My favorite example is Usenet News, a part of the internet older and less well known than the web. To the user it looks like a collection of online bulletin boards, each on a different topic–anarchy, short-wave radios, architecture, cooking history. When I post a message to a newsgroup, the message goes to a computer–a news server–provided by my ISP. The next time that news server talks to another they exchange messages–and mine spreads gradually across the world. In an hour, it may be answered by someone in Finland or Japan. The server I use hosts nearly thirty thousand groups. Each is a collection of conversations spread around the world–a tiny non-geographical community united, and often divided, by common interests.[11]
Google, which hosts a popular web search engine, also provides a search engine for Usenet. Using it I can discover in less than a minute whether anyone has mentioned my name anywhere in the world any time in the last three days–or weeks, or years–in any of more than thirty thousand newsgroups. If I get a hit, one click brings up the message. If I am the David Friedman mentioned (the process would be easier if my name were Myron Whirtzlburg), and if the message requires an answer, a few more clicks put my response in the same thread of the same newsgroup, where almost everyone who read the original post will see it. It is as if, when anyone slandered me anywhere in the world, the wind blew his words to me and my answer back to the ears of everyone who had heard them.
The protection Usenet offers against defamation is not perfect; a few people who read the original post may miss my reply and more may choose not to believe it. But the protection offered by the courts is imperfect too. Most damaging false statements are not important enough to justify the cost and trouble of a lawsuit. Many that are do not meet the legal requirements for liability. Given the choice, I prefer Usenet.
Suppose that instead of defaming me on a newsgroup you do it on a web page. Finding it is easy–Google provides a search engine for the web too. The problem is how to answer it. I can put up a web page with my answer and hope that sufficiently interested readers will come across it, but that is all I can do. The links on your web page are put there by you, not by me–and you may be reluctant to add one to the page that proves you are lying.
There is a solution to this problem–a technological solution. Current web browsers show only forward links–links from the page being read to other pages. It would be possible to build a web browser, say Netscape Navigator 9.0, that automatically showed back links, letting the user see not only what pages the author of this page chose to link to but also what pages chose to link to it.[12] Once such browsers are in common use, I need only put up a page with a link to yours. Anyone browsing your page with the back link option turned on will be led to my rebuttal.[13]
There is a problem with this solution–a legal problem. Your web page is covered by copyright, which gives you the right to forbid other people from making either copies or derivative works. A browser that displays your page as you intended is making a copy, but one to which you have given implicit authorization by putting your page on the web. A browser that displays your page with back links added is creating a derivative work–one that you may not have intended and, arguably, did not authorize. To make sure your lies cannot be answered, you notify Netscape that they are not authorized to display your page with back links added.
The issue of when one web page is an unauthorized derivative work of another is currently being fought out in the context of "framing"–one web site presenting material from another along with its own advertising. If my view of online defamation is correct, the outcome of that litigation may be important to an entirely different set of issues. The same legal rule–a strong reading of the right to prevent derivative works online–that would protect a site from other people free riding on its content would also provide protection to someone who wants to spread lies online.
"My mother was a test tube, my father was a knife."
Friday, Robert A. Heinlein
Technological changes alter the cost of doing things. But they may also affect us in a more subtle way–by making obsolete the categories we use to talk and think about the world around us.
Consider the category of "parent." It used to be that, while there might be some uncertainty about the identity of a child's father, there was no question what "father" and "mother" meant. Laws and social norms specifying the rights and obligations of fathers and mothers were unambiguous in meaning, if not always in application.
That is no longer the case. With current reproductive technology there are at least two biological meanings of "mother" and will soon be a third. A gestational mother is the woman in whose womb a fetus was incubated. An egg mother is the woman whose fertilized egg became the fetus. Once human cloning becomes an established technology, a mitochondrial mother will be the woman whose egg, with its nucleus replaced by the nucleus of the clone donor but with its own extra-nuclear mitochondrial DNA, developed into the fetus. And once genetic engineering becomes a mature technology, permitting us to produce offspring whose DNA is a patchwork from multiple donors, the concept of "a" biological mother (or father) will be very nearly meaningless.
A California couple wanted a child. The husband was sterile. His wife was doubly sterile–she could neither produce a fertile egg nor bring a fetus to term. They contracted with a sperm donor, an egg donor, and a gestational mother. The donated egg was impregnated with the donated sperm and implanted in the rented womb. Then, before the baby was born, their marriage broke up, leaving the courts with a puzzle: What person or persons had the legal rights and obligations of parenthood?
Under California law read literally, the answer was clear. The mother was the woman from whose body the child was born. The father was her husband. That was a sensible enough legal rule when the laws were written. But it made no sense at all in a world where neither that woman nor her husband was either related to the child or had intended to parent it.
The court that finally decided the issue, like some but not all other California courts presented with similar conundrums, sensibly ignored the literal reading of the law, holding that the parents were the couple who had set the train of events in motion, intending at that time to rear the child as their own.[14] They thus substituted for a biological definition that had become technologically obsolete a social definition–motherhood by neither egg nor womb but by intention.
This is a true story. If you don't believe me, go to a law library and look up John A. B. Vs. Luanne H. B (72 Cal. Rptr. 2d 280 (Ct. App. 1998)).[15]
Consider someone whose body is preserved at the temperature of liquid nitrogen while awaiting the medical progress needed to revive and cure him. Legally he is dead; his wife is a widow, his heirs have his estate. But if he is in fact going to be revived, then in a very real sense he is not dead–merely sleeping very soundly. Our legal system, more generally our way of thinking about people, takes no account of the special status of such a person. There is a category of alive, a category of dead, and–outside of horror movies and computer games–nothing between them. [16]
The absence of such a category matters. It may, quite literally, be a matter of life and death.
You are dying of a degenerative disease that will gradually destroy your brain. If you are cured today, you will be fine. If a year later, your body may survive but your mind will not. After considering the situation, you decide that you are more than willing to trade a year of dying for a chance of getting back your life. You call up the Alcor Foundation and ask them to arrange to have your body frozen–tomorrow if possible.
They reply that while they agree with your decision they cannot help you. As long as you are legally alive, freezing you is legally murder. You will simply have to wait another year until you are declared legally dead–and hope that somehow, some day, medical science will become capable of reconstructing you from what by that time is left.
This too is, allowing for a little poetic license, a true story. In Donaldson v. Van de Kamp[17], Thomas Donaldson went to court in an unsuccessful attempt to get permission to be frozen before, rather than after, his brain was destroyed by a cancerous tumor.
The issues raised by these cases–the meaning of parenthood and of death–will be discussed at greater length in later chapters. Their function here is to illustrate the way in which technological change alters the conceptual ground under our feet.
All of us deal with the world in terms of approximations. We describe someone as tall or short, kind or cruel, knowing that the former is a matter of degree and the latter both of degree and of multiple dimensions. We think of the weather report as true, although it is quite unlikely that it provides a perfectly accurate description of the weather, or even that such a description is possible–when the weather man says the temperature is 70 degrees in the shade, just which square inch of shade is he referring to? And we classify a novel as "fiction" and this book as "nonfiction," although quite a lot of the statements in the former are true and some in the latter are false.
Dealing with the world in this way works because the world is not a random assemblage of objects–there is pattern to it. Temperature varies from one patch of shade to another, but not by very much; while a statement about "the" temperature in the shade may not be precisely true, we rarely lose much by treating it as if it were. Similarly for the other useful simplifications of reality that make possible both thought and communication.
When the world changes enough, some simplifications cease to be useful. It was always true that there was a continuum between life and death; the exact point at which someone is declared legally dead is arbitrary. But, with rare exceptions,[18] it was arbitrary to within seconds, perhaps minutes–which almost never mattered. When it is known that, for a large number of people, the ambiguity not only exists but will exist for decades, the simplification is no longer useful. It may, as in the case of Thomas Donaldson, become lethal.
So far my examples have focused on how legal rules should respond to
technological change. But similar issues arise for each of us in living his own
life in a changing world. Consider, for a story now in part played out, the
relations between men and women.
For a very long time, human societies have been based on variants of the sexual division of labor. All started with a common constraint–women bear and suckle children, men do not. For hunter gatherers, that meant that the men were the hunters and the women, kept relatively close to camp by the need to care for their children, the gatherers. In more advanced societies that became, with many variations, a pattern where women specialized in household production and men in production outside the household.
A second constraint was the desire of men to spend their resources on their own children rather than on the children of other men–a desire rooted in the fact that Darwinian selection has designed organisms, including human males, to be good at passing down their own genes to future generations.[19] Since the only way a man could be reasonably confident that he was the father of a particular child was for its mother not to have had sex with other men during the period when it was conceived, the usual arrangement of human societies, with a few exceptions, gave men sexual exclusivity. One man might under some circumstances sleep with more than one woman but one woman was supposed to, and most of the time did, sleep with only one man.[20]
Over the past few centuries two things have sharply altered the facts that led to those institutions. One was the decline in infant mortality. In a world where producing two or three adult children required a woman to spend most of her fertile years bearing and nursing, the sexual division of labor was sharp–one profession, "mother," absorbed close to half the labor force. In today's world, a woman need bear only two babies in order to end up with two adult children.[21]
A second change, the increased division of labor, has drastically reduced the importance of household production. You may still wash your own clothes, but most of the work was done by the people who built the washing machine. You may still cook your own dinner, but you are unlikely to cure your own ham or make your own soap. That change eliminated a good deal of what wives traditionally did, freeing women for other activities.[22]
As being a wife and mother went from a full to a part time job, human institutions adjusted. Market employment of women increased. Divorce became more common. The sexual division of labor, while it still exists, is much less sharp–many women do jobs that used to be done almost exclusively by men, some men do jobs that used to be done almost exclusively by women.
One consequence of married women working largely outside of the home is to make the enforcement of sexual exclusivity, never easy,[23] very nearly impossible. Modern societies developed a social alternative--companionate marriage. A wife who is your best friend instead of your subordinate or slave is less likely to want to cheat on you--a good thing if you have no practical way of stopping her. Modern society also produced, somewhat later, a technological alternative: Paternity testing. It is now possible for a husband to know whether his wife's children are his even if he is not confident that he is her only sexual partner.
This raises some interesting possibilities. We could have–are perhaps moving towards–a variant of conventional marriage institutions in which paternal obligations are determined by biology, not marital status. We could have a society with group marriages but individual parental responsibilities, since a woman would know which of her multiple husbands had fathered any particular child. We could have a society with casual sex but well defined parental obligations–although that raises some practical problems, since it is much easier for a couple to share parental duties if they are also living together, and the fact that two people enjoy sleeping together is inadequate evidence that they will enjoy living together.
All of these mating patterns exist already–for a partial sample, see the Usenet newsgroup alt.polyamory. Whether any become common will depend in large part on the nature of male sexual jealousy. Is it primarily a learned pattern, designed to satisfy an instinctual preference for one's own children? Or is it itself instinctual–hard wired by evolution as a way of improving the odds that the children a male supports carry his genes?[24] If the former, then once the existence of paternity testing makes jealousy obsolete we can expect its manifestations to vanish, permitting a variety of new mating patterns. If the latter, jealousy is still obsolete but, given the slow pace of evolutionary change, that fact will be irrelevant to behavior for a very long time, hence we can expect to continue with some variant of monogamy, or at least serial polygamy, as the norm.
The basic principle here is the same as in earlier examples of adjustment to technological change. Our objective is not to save marriage. It is to accomplish the purposes that marriage evolved to serve. One way is to continue the old pattern even though it has become more difficult–as exemplified by the movement for giving couples the option of covenant marriage, marriage on something more like the old terms of "till death do us part." Another is to take advantage of technological change to accomplish the old objective–producing and bringing up children–in new ways.
Technology affects law and love. Also business. Consider the problem of contract enforcement.
Litigation has always been a clumsy and costly way of enforcing contractual obligations. It is possible to sue someone in another state, even another country–but the more distant the jurisdiction, the harder it is. If online commerce eventually dispenses with not only geography but real world identity, so that much of it occurs between parties linked only to an identity defined by a digital signature, enforcing contracts in the courts becomes harder still. It is difficult to sue someone if you do not know who he is.
There is an old solution–reputation. Just as in the case of defamation, the same technology that makes litigation less practical makes the private substitute more practical.
Ebay provides a low tech example. When you win an auction and take delivery of the goods, you are given an opportunity to report on the result–did the seller deliver when and as scheduled, were the goods as described? The reports on all past auctions by a given seller are available, both in full and in summary form, to anyone who might want to bid on that seller's present auctions. In a later chapter we will consider more elaborate mechanisms, suitable for higher stakes transactions, by which modern information technology can use reputational enforcement to substitute for legal enforcement.
When considering the down side of technologies–Murder Incorporated in a world of strong privacy or some future James Bond villain using nanotechnology to convert the entire world to gray goo–your reaction may be "Stop the train, I want to get off. " In most cases, that is not an option. This particular train is not equipped with brakes.
Most of the technologies we will be discussing can be developed locally and used globally. Once one country has a functional nanotechnology, permitting it to build products vastly superior to those made with old technologies, there will be enormous pressure on other countries to follow suit. It is hard to sell glass windshields when the competition is using structural diamond. It is even harder to persuade cancer patients to be satisfied with radiation therapy when they know that, elsewhere in the world, microscopic cell repair machines are available that simply go through your body and fix whatever is wrong.
For an example already played out, consider surrogacy contracts–agreements by which a woman bears a child, either from her own or another woman's egg, for another couple to rear as its own. The Baby M case established that such contracts are not enforceable, at least in New Jersey. State legislation followed, with the result that in four states merely signing such a contract is a criminal act and in one, Michigan, arranging a surrogacy contract is a felony punishable by up to five years and $50,000.
None of this mattered very much. Someone who could afford the costs of hiring a host mother, still more someone who could afford the cost necessary to arrange for one mother to incubate another's egg, could almost certainly afford the additional cost of doing it in a friendly state. As long as there was one state that approved of such arrangements, the disapproval of others had little effect. And even if the contracts were legally unenforceable, it was only a matter of time before people in the business of arranging them learned to identify and avoid potential host mothers likely to change their mind after the child was born.[25]
Or consider research into the causes of aging. Many people believe (I think mistakenly) that the world suffers from serious problems of overpopulation. Others argue (somewhat more plausibly) that a world without aging would risk political gerontocracy and cultural stasis.[26] Many would–some do–argue that even if the problem of aging can be solved, it ought not to be.
That argument becomes less convincing the older you get. Old people control large resources, both economic and political. While arguments against aging research may win out somewhere, they are unlikely to win out everywhere–and the cure only has to be found once.
For a more disturbing example, consider artificial intelligence–a technology that might well make human beings obsolete. At each stage, doing it a little better means being better able to design products, predict stock movements, win wars. That almost guarantees that at each stage, someone will take the next step.
Even if it is possible to block or restrict a potentially dangerous technology, as in a few cases it may be, it is not clear that we should do it. We might discover that we had missed the disease and banned the cure. If an international covenant backed by overwhelming military power succeeds in restricting nanotechnological development to government approved labs, that might save us from catastrophe. But since government approved labs are the ones most likely to be working on military applications of new technology, while private labs mostly try to produce what individual customers want, the effect might also be to prevent the private development of nanotechnological countermeasures to government developed mass destruction. Or it might turn out that our restrictions had slowed the development of nanotechnology by enough to leave us unable to defend against the result of a different technology–a genetically engineered plague, for example.
There are legitimate arguments for trying to slow or prevent some of these technological developments. Those arguments will be made–but not here. For my purposes, it is more interesting to assume that such attempts, if made, will fail, and try to think through the consequences–how new technologies will change things, how human beings will and should adapt to those changes.
Technological progress means learning more about how to do things; on the face of it, one would expect that to result in an improvement in human life. So far, with few or no exceptions, it has. Despite a multitude of dire prophesies over the past two centuries, human life almost everywhere is better today than it was fifty years ago, better fifty years ago than a hundred years ago, and better a hundred years ago than two hundred years ago.