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ASU colleges to collaborate on law, technology project

November 19, 2007

A transdisciplinary team of faculty members and students at Arizona State University has begun a research project to address the growing lag between emerging technologies and the policies and ethics that govern them, and to recommend solutions for improving the timeliness and flexibility of these regulatory processes.

The group received an $80,000 grant from the Joan and David Lincoln Center for Applied Ethics at ASU for the project, “Addressing the Growing Gap Between Rapidly Emerging Technologies and Ethical, Legal and Policy Capabilities.” The project will be led by Gary Marchant, Lincoln Professor of Emerging Technologies, Law & Ethics in the Sandra Day O’Connor College of Law and Executive Director of the College’s Center for the Study of Law, Science, & Technology; Braden Allenby, Lincoln Professor of Engineering and Ethics in the Ira A. Fulton School of Engineering; and Joseph Herkert, Lincoln Associate Professor of Ethics and Technology in the School of Applied Arts and Sciences.

“This project fits perfectly with these three Lincoln professors, with the Center, and with the Lincoln family, which has always been involved in technology,” said Peter French, director of the Lincoln Center. “What we’re looking for here is to expose the problem, that various technologies in so many different areas have advanced way past not only what the law, but what ethics, as well, can track. And we need to look at how to keep pace.”

Marchant said the project will tackle an exciting intellectual issue: how to get the law and ethics to move more quickly?

“We see this as a big project for the next two to three years at the law school and the university,” he said. “Science and technology are moving faster than ever before, but the pace of rulemaking and policy-making is clearly slowing down.”

Marchant cited numerous examples of antiquated laws, unregulated new technologies in the areas of genetics and biotechnology, nanotechnology, cognitive sciences and information and enhancement technologies, and agencies bogged down in public-hearing methods that haven’t kept up with the times.

For example, Marchant said, adoption of a single regulation in the Occupational Safety and Health Administration often takes eight or more years, and the Clean Water Act of 1972 doesn’t regulate runoff, which is among the top sources of water pollution today.

A dramatic example of the law lagging far behind technology can be found at the Federal Communications Commission, he said. Despite the fact that an estimated 250 million Americans use cell phones, the FCC claims it isn’t ready to regulate how cell phone service providers use the private information of its users. And there’s virtually no regulation of Radio-Frequency Identification, which can be used to track a product, animal or person.

“With a lot of technology being developed today, the whole idea is to know who you are and where you are,” said Herkert, referring to a range of new communication and tracking technologies now entering the market. “What does privacy mean in that context? Is there such a thing?”

The gap between science and policy development also puts businesses and their investors at a disadvantage, depriving the certainty and predictability they need to plan and innovate, and posing a growing threat to the future of our economy and health, the researchers said.

“In my discussions with people, I have been amazed at how unaware most are of how rapidly technology is advancing, and its implications for our lives,” said Allenby. “In light of accelerating technological evolution, the need for ethical and responsive legal structures is important not just to support our quality of life, but as an increasingly critical matter of national competitiveness.”

The project calls for the researchers to first establish specific problems in the pacing of technology, science and the law, by developing case studies on the speed of technology development. They will then develop models that may enable policymakers, courts and regulators to respond more quickly.

“And it’s not just the speed of innovation, it’s the quality of the technology itself,” Herkert said. “Nanotechnology is a great example. We’re dealing with materials with novel properties that we don’t have an experience base with. The idea of regulating it by historic examples doesn’t necessarily hold in this case.”

A cluster of law students has begun working in five areas -- genetic testing and human enhancement, brain scanning, surveillance technologies, nanotechnology and environmental advancements – and how these are regulated by agencies, legislatures and the courts.

Next fall, a workshop will be held at ASU, involving about 20 leading scholars, policymakers and others who will discuss the issue of pacing ethics and law with rapidly developing technologies and hammer out the proposed solutions. These ideas will be presented and discussed at the workshop at ASU in October 2008, then published as a book and a Web site, for use by policymakers, regulators, journalists, industry experts, public interest groups, scholars and members of the public.

“We’re thinking of this, two to three years out, as a seeding project that will allow the team to proceed to a more significant grant to carry the project to the next level,” French said.