Warning: This piece contains Spoilers for the movie Moon
A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.
As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."
The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.
In the aftermath of September 11, when the government was expanding its surveillance powers and preparing for an invasion of Afghanistan, the ACLU began gaming out worst-case scenarios of civil-liberties violations. As James Madison once wrote, "No nation could preserve its freedom in the midst of continual warfare" -- and yet here was America, in the midst of a global war with no defined end. In the summer of 2002, it wasn't just 9/11 that had the civil-liberties world all shaken up -- scientific advancements in the 1990s had led to the first successfully cloned animal, Dolly the sheep. With both science and surveillance on his mind, a policy analyst named Jay Stanley decided that the ACLU needed to be better prepared for threats to liberty that, at the time, existed only in the imagination.
Stanley, a former analyst with a technology -- research company, compiled a report titled Technology, Liberties, and The Future, which was never released to the public. In it, he draws on insights from scientists, legal scholars, and political theorists, gaming out the ACLU's possible response to everything from cloning to artificial intelligence to genetic splicing to nanotechnology. He raises more questions than he answers. What would happen, Stanley wonders, if people could develop genetic "recipes" for cloning? "How do free speech rights bear up against privacy interests when, for example, such recipes are traded over the Internet?" he asks. Once humans gain the ability to modify their brains with technology, or modify computers with genetic material, what qualifies as a human "when it comes to granting all the rights that come with personhood?"
Stanley's secret 2002 paper may be a futuristic document, but its intellectual origins lie in Olmstead v. United States, a 1928 case in which the Supreme Court upheld the conviction of Roy Olmstead, a bootlegger who was convicted by evidence obtained through warrantless wiretaps. A dissent in that case, written by Justice Louis Brandeis, is often cited by civil libertarians for its prescience. "Subtler and more far-reaching means of invading privacy have become available to the Government," Brandeis wrote. "Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet."
It's unlikely Brandeis could have imagined the world of 2010, but being a civil libertarian requires a sprinkle of paranoia -- it means anticipating threats to freedom rather than waiting for them to mobilize, because often, that means it's too late. "It's striking how rapidly things move from being science fiction to being true threats to privacy, from face recognition to body scanners," Stanley says. "It's important to be ahead of the curve and frame the debate so they know what the civil-liberties issues are."
Stanley's 2002 paper tries to do just that. In it, he carefully imagines what could happen when human reproductive cloning is perfected -- "what enforcement action would be taken when, say, a sixth-grader is discovered to be an unauthorized clone of Jennifer Lopez?" Could genetic enhancement inspire a kind of neo-eugenicist society where social classes are determined by access to the kind of wealth one needs to take advantage of such technologies? If humans succeeded in splicing their own DNA with that of animals, where would the line of "personhood" be drawn? Citing a scenario out of the 1997 movie Gattaca, Stanley expresses concern that the growing ability to remove genetic defects prior to childbirth might lead to employers collecting hair or skin cells from prospective employees. (On this last point his concern was prescient: In 2008, Congress outlawed genetic discrimination nearly unanimously. In the House, Ron Paul was the only dissenting vote.)
The abstract issues of rights and liberties raised by Stanley's report at once evoke and draw from recent American science fiction. Written in the shadow of Soviet communism, European classics such as 1984 and Brave New World focus on dystopian visions of totalitarian societies. In the United States, the threat of communism has always been an abstract one, and American sci-fi reflects the fact that, here, threats to liberty come not just from government or the private sector but from the confluence of both. The cult hit Blade Runner features a dystopian future where the Tyrell Corporation manufactures androids that are nearly indistinguishable from humans but are considered property with no rights at all. In the Terminator series, a defense contractor builds artificial intelligence that plunges the world into an apocalyptic war between humans and cyborgs. The villainous firm in the Alien movies, The Company, is constantly exposing its workers to danger in order to learn more about the capabilities of the eponymous aliens. James Cameron's recent hit, Avatar, re-imagines The Company as a Blackwater-like military contractor. Ultimately these stories are about the enduring, sometimes crushing nature of social systems -- and about how individuals fight not to get squashed in the grinding gears of competing capitalist ambitions.
Stanley's report successfully convinced the ACLU leadership that these plots were rooted in science as much as fiction -- and that the organization was frightfully ignorant of potential threats to individual liberty from emerging technologies. "We decided that we needed to have somebody who could help us think through these issues and monitor them and provide us with ties to the scientific community and scientific expertise," Stanley explains. In 2003, the ACLU hired a science adviser, Tania Simoncelli, to monitor scientific advancements for potential threats and act as a liaison to the scientific community.
"I was rattling off some different topics that I thought had a litigation angle," Simoncelli recalls, "and I said of course there's always the issue of gene patents."
Chris Hansen, an ACLU staff attorney, balked. "What?" he said. "You're telling me ... the U.S. patent office is granting patents on human genes?"
"Chris," Simoncelli explained, "it's been going on for about 20 years."
There isn't any legislation governing which biological artifacts can be patented and which can't. Instead, the guiding legal standard is a 1980 Supreme Court decision, Diamond v. Chakrabarty, which holds that biological organisms can be patented as long as they have been altered enough that they are not naturally occurring. Hansen and Simoncelli began researching how to bring a case against Myriad Genetics, a company holding the patent for two genes linked to the mutations that cause breast cancer. The process took two years, but the ACLU eventually brought the biggest science-based lawsuit in its history against Myriad.
You can't patent laws of nature or products of nature or abstract ideas. So Myriad's position was simple: By isolating the gene, the company had created something that doesn't naturally occur in nature. The problem is, although they were isolated, the genes were indistinguishable from the genes that naturally occur in human beings. Also, Hansen argued, Myriad's patent was stifling innovation by preventing other firms from doing research on the genes in question. "What we have is the government granting exclusive control over human genes to a private company, so government is ... intimately involved in deciding what is patentable and what isn't patentable," Hansen says. "This is yet another example of government trying to accommodate a maximum request for protection of individual property at the request of private corporations."
Many patent-law experts predicted Myriad would win the case. If the court held that it was legal to patent an unaltered gene, the only company able to research or develop any cancer treatments from studying that gene would be Myriad. It could, in effect, lock out other companies and slow innovation to a crawl. The 1980 Diamond ruling happened at a time when human genes weren't understood very well, and the state of the science was such that people believed single genes were responsible for diseases. But with the discovery that humans have around 30,000 genes, it's clear that diseases stem from interactions between genes, which means patenting a single gene would prohibit any non-Myriad researcher from studying its interaction with others, preventing any potential discovery that might arise as a result. The implications go beyond simple market competition -- if one could patent a gene simply by isolating it, why not a kidney? Or a femur? It's easy to see how in the long run, such a precedent could lead to the Moon scenario -- even a self-aware clone would merely be a patentable piece of property.
U.S. District Court Judge Robert W. Sweet ruled, however, that the isolated DNA was not "markedly different" from naturally occurring DNA, invalidating the patent. The ACLU had, temporarily at least, successfully prevented private corporations from patenting a part of the human body.
Myriad has since appealed, and if the case reaches the high court, there will be a corporate-friendly conservative bloc that will be difficult to persuade. In case after case, the conservative majority has favored the rights of corporations over those of individual human beings.
The American corporatist dystopia isn't here yet. But the Myriad case is an indication of how far technological innovation has surpassed our understanding of its legal implications and how easily government's ability to protect individual liberty has been outpaced by commercial interests. If Big Brother knew what the creative engine of capitalism was capable of, Oceania would have never had a centrally controlled economy.
In a world where the government can circumvent constitutional restrictions on its power by outsourcing its surveillance infrastructure to the private sector and where private companies can patent parts of the human body, it's hard to imagine the fight for individual liberty getting any easier.
Sometimes, science fiction isn't as futuristic as we might think.