Archives: 01/2008

Emerging Technologies: A New Era of Regulation

The world is gearing up to regulate new technologies such as genetic engineering, artificial intelligence, robotics, and nanotechnology. While extensive regulation of all these areas is under consideration, the most pressing in policymakers’ minds seems to be nanotechnology. And no wonder – the industry is booming. Lux Research estimates that nanotechnology was incorporated into more than $50 billion worth of manufactured goods last year, and that by 2014 the nanotechnology market will grow to a $2.6 trillion industry.

On February 28-29, 2008, the Food and Drug Law Institute is sponsoring the First Annual Conference on Nanotechnology Law, Regulation and Policy in Washington, D.C. No where in the world does any nano-specific regulation exist. But it is on its way. At this conference government officials such as Norris Alderson, FDA Associate Commissioner for Science; Michael Taylor, author of an FDA report on nanotechnology and Sen. Ron Wyden, co-chair of the Congressional Nanotechnology Caucus will describe their vision for future nanotechnology regulation.

On January 22, science and technology advisors to European presidents, the EU, and various multinational organizations attended a meeting in London sponsored by the Center for Policy on Emerging Technologies to discuss the risks, policies, and ethics associated with emerging technologies. The meeting was confidential, and attendees agreed not to quote any of the participants, but I am allowed to share my prepared comments:

Presentation, as prepared, for the C-PET Meeting: “Risk, Policy and Ethics,” London, 22 January 2008

Nigel asked me to give you a sense of the American / libertarian approach to emerging technologies. Let me being by sharing with you some dialogue from a movie that I first learned about from students at a U.S. high school for children gifted in science and technology. The movie is called Serenity and it (as well as the T.V. show Firefly on which it was based) has almost a cult following among American students interested in science and technology.

Background: The Earth becomes too crowded and dozens of other planets are terraformed to support human life. The central planets form an Alliance rule by an interplanetary parliament. The narrator tells us at the beginning of the film that “the Alliance was a beacon of civilization. The savage outer planets were not so enlightened and refused Alliance control.” In a war to “ensure a safer universe” the Alliance defeated the Independents. “And, now everyone,” the narrator continues, “can enjoy the comfort and enlightenment of true civilization.”

First scene: A school classroom: a student asks “Why were the Independents even fighting us? Why wouldn’t they want to be more civilized?” The heroine answers out of turn, “We meddle. People don’t like to be meddled with. We tell them what to do, what to think. Don’t run, don’t walk. We’re in their homes and in their heads and we haven’t the right. We’re meddlesome.” The teacher responds, “We’re not telling people what to think … we’re just trying to show them how.”

Scene near the middle of the movie: The heroine and her friends find an outer-planet where everyone is dead. A beacon leads them to a laboratory where they find a recording left behind by an Alliance scientist.


These are just a few of the images we’ve recorded. And you can see…it isn’t what we thought. There’s been no war here…and no terraforming event. The environment is stable. It’s the Pax. The G-[exclamation] Paxilon Hydroclorate that we added to the air processors. It was supposed to calm the population, weed out aggression. Well, it works. The people here stopped fighting. And then they stopped everything else. They stopped going to work…they stopped breeding, talking, eating. There’s a million people here, and they all just let themselves die.

[Crashing] [Gasps] I have to be quick. About a tenth of a percent of…the population had the opposite reaction to the Pax. Their aggressor response increased beyond madness. They have become… [crashing] Well, they’ve killed most of us. And not just killed…they’ve done things.

Reavers [monsters that have been attacking settlers] They made them.

I won’t live to report this, but people have to know. We meant it for the best… to make people safer. [Reavers growling] God! [Woman screaming][Reaver growling]

This movie, so loved by science oriented teenagers all over the U.S., doesn’t reflect a new mistrust in government. One of America’s founding principles is a mistrust of government. Our constitution contains numerous safeguards to protect individuals against tyranny of the majority and the abuse of power by government officials.

For all of us, emerging technologies conjure up images of both a new enlightenment and the possible destruction of what is most valuable in human nature. Of course, there are also a range of possibilities in between. Talking and thinking about the necessary and sufficient conditions for what it means to be human, as we have done here today, is important, and we should share our insights with the public.

The role governments should play in the development of emerging technology is to protect academic freedom, encourage the sharing of information, and enforce informed consent for research subjects. Governments should not try to assess what types of research are most beneficial to society. There is no shared conception of humanity and not even the wisest men and women could possibly judge for anyone other than themselves whether the use of a particular technology would constitute an affront to their humanity.

The Nobel economist F. A. Hayek in his last book The Fatal Conceit argued that human beings are daunted by unintended consequences and that governments that try to regulate human interaction based on broad-scale economic and social predictions are destined to make large mistakes. Applying Hayek’s reasoning to emerging technologies means that the best way to ensure caution is to keep government out of the pursuit of scientific knowledge. When governments, which are run by individuals no less fallible than the rest of humanity, make mistakes, those mistakes loom larger than life, affecting not only the lives of the individuals who willingly participated in private experiments, but the lives of whole populations.

I have time for only one example, but it is a poignant one. At the beginning of the 20th century, eugenics was touted as the answer to all of humanity’s problems. Great scientists such as Alexander Graham Bell and Carl Campbell Brigham (inventor of the SAT test used to test American students for university admissions) at first supported eugenics, as did numerous Nobel Laureates, most European governments, and every U.S. president between 1901 and 1933. (See below.) Many people all over the world worked hard both in their private lives and through government policy to implement the principles of eugenics.

Both individuals and governments had their own ideas about how to improve the human gene pool. Individuals tried marrying only people they considered superior specimens of humanity. Governments, on the other hand, imposed laws against interracial marriage, sterilized those they believed to be of low intelligence or mentally ill, and even exterminated whole groups of people who because of their race, sexual orientation or religion were thought inferior specimens of humanity. If the eugenics movement had remained in the private sphere, resulting in nothing more than discriminatory marriage practices by some private individuals, the word “eugenics” would be remembered as little more than a silly fad. Instead, governments got involved and now the word “eugenics” is almost synonymous with mass sterilizations and genocide.

Emerging technologies such as genetic engineering, nanotechnology, mechanical implants, artificial intelligence, and all the others we’ve discussed today may be the answer to many of humanity’s problems. Or, they may be the next eugenics. Government intervention turns potential mishaps into disastrous tragedies. Let’s keep government out of science and let the advances and mistakes take place in the private sector where humanity can learn from scientific successes and failures on a manageable scale.


• Theodor Roosevelt (1906 – Peace prize. U.S. President 1901-1908)
• Elihu Root (1912 – U.S. Secretary of State under Teddy Roosevelt )
• Alexis Carrel (1912 –Experimented with tissue and organ transplantation)
• Woodrow Wilson (1919 – Peace prize – U.S. President 1912-1919)
• George Bernard Shaw (1925 – Literature)
• Thomas Hunt Morgan (1933 – Role of chromosomes in heredity)
• Jane Addams (1933 – Peace prize for her social work)
• H.J. Muller (1946 – Discovered that x-rays cause mutations)
• Winston Churchill (1953 – Prize in literature. Prime Minister of England 1940-45)
• Linus Pauling (1954 – Nature of certain chemical bonds)
• William Shockley (1956 – Semiconductor research)
• Joshua Lederberg (1958 – Recombination of genetic material in bacteria)
• Francis Crick (1962 – Discovery of the structure of DNA)
• Konrad Lorenz (1973 - Organization elicitation of individual and social behavior patterns)
• Gunnar Myrdal (1974 – Interdependence of economic, social and institutional phenomena)


• All U.S. Presidents between 1900 and 1933. In addition to Roosevelt and Wilson, there were Taft, Harding, Coolidge and Hoover.
• Helen Keller – “some ‘defective’ children should not be saved from a premature death because of their propensity to criminality.”
• Alexander Graham Bell - Wanted to discourage deaf people from marrying each other.
• William Welch – the first dean of the School of Medicine at Johns Hopkins University. (Father of American Medicine)
• Margaret Sanger – Founder of American Birth Control League which later became Planned Parenthood of American
• Oliver Wendell Holmes Jr. – Civil War hero and Justice on the U.S. Supreme Court from 1902-1932. Considered one of the most influential justices in U.S. history.

School Choice Still Increasing Graduation Rates, Still Popular, Still Being Blocked by the Teachers Unions

A report just released by School Choice Wisconsin provides more evidence that school choice programs increase graduation rates, in addition to improving student test scores and parental satisfaction.

And a new state survey from the Friedman Foundation adds more to the mountains of evidence that parents would rather choose another school for their children and that the public supports school choice policies.

But we all know that in politics, what’s right, what works, and what the public wants are far from the most important considerations. Which brings us to our next news item …

From the New York Sun comes a cautionary tale for politicians and Democrats in particular:

Lawmakers in Albany were given a powerful reminder of the political danger of siding in favor of school choice measures when the state’s largest teachers union yesterday endorsed the Republican candidate in an important special election that will take place next month for a seat in the state Senate.

The faint silver lining is that the teachers unions had to cross other liberal interest groups in the process, as the Democrat in the race “has won the backing of steelworkers and other local unions in the district.”

John McCain: The Good, the Bad, and the Ugly

With his victory in Florida, Sen. John McCain has become the clear front runner for the Republican nomination. It’s worthwhile, therefore, to take a closer look at what kind of president he might be.

The Good: While Rush Limbaugh and Sean Hannity sometimes portray McCain as a virtual clone of Ted Kennedy, the fact is that he is a true fiscal conservative—certainly more of a fiscal conservative than, say, Mitt Romney. He is well known as an opponent of earmarks and pork barrel spending. But perhaps more importantly, he has long been an advocate of entitlement reform. He was early an ardent support of personal accounts for Social Security, and has pushed for serious Medicare reform, including means-testing. Almost alone among Republicans, he opposed the disastrous Medicare prescription drug benefit.

He has offered the best health care reform plan of any of the candidates. While Mitt Romney has embraced the basic tenants of HillaryCare, McCain would change the tax code to equalize the treatment between employer-provided and individually-purchased health insurance. This is a vital step in moving away from our employment-based health care system toward a more consumer-oriented system. And, he would allow the purchase of low-cost insurance across state lines, avoiding regulation and mandates.

During his time in the Senate, he has never voted for a tax increase. While he has taken much heat for voting against the Bush tax cuts, he now calls for making those tax cuts permanent (although he would retain a vestige of the estate tax at a reduced rate and increased exemption). And, McCain is right that cutting taxes has too often become an excuse for republicans to avoid the hard task of cutting spending. Cutting taxes reduces the pain of government spending (at least for now), allowing Congress to avoid difficult choices. While taxes need to be cut—and McCain supports a number of tax cuts including reductions in the business tax rates and capital gains taxes—future tax cuts should be linked with spending cuts. As I argue in my book, Leviathan on the Right, it’s the size of government, stupid.

He is a strong and unapologetic free trader.

The Bad: John McCain frequently makes Dr. Strangelove look like a peacenik. Its not just his desire to remain in Iraq “for a hundred years.” It’s his bellicosity toward every enemy and perceived enemy from Iran to North Korea. He’s a true believer in the neoconservative goal of remaking the world to fit our desires and beliefs. At best on foreign policy he would be a competent Bush. At worst, he appears a recipe for perpetual conflict.

On domestic policy, he has shown a disturbing predilection for elevating every personal pet peeve, from steroids in baseball to airplane service quality, to a federal issue. And, he has embraced heavily regulatory environmental policies and compulsory national service. Like George W. Bush, he tends to support federal power over federalism, executive authority over legislative, and generally leans toward the imperial presidency.

The Ugly: John McCain appears to have little more than contempt for the First Amendment and free speech generally. He is the principal author of a campaign finance bill that severely restricts political speech. Not content with those restrictions on political speech, he has continually sought to expand regulation to other groups. He has said that he “would rather have a clean government than one where, quote, First Amendment rights are being respected, that has become corrupt. If I had my choice, I’d rather have the clean government.” Any candidate who believes that respect for First amendment rights needs to be qualified by “quote,” raises serious concerns. Moreover, his general attitude appears to be that criticism of the government, the war, and in particular himself, is somehow unpatriotic.

Most worrisome of all appears to be McCain’s basic philosophy, which is unapologetically statist, as Matt Welch points out in his new book McCain: The Myth of a Maverick. McCain once said “each and every one of us has a duty to serve a cause greater than our own self-interest.” McCain believes that cause to be the good of the collective, often defined as the nation or the national community.

For believers in individual liberty and limited government, it’s a decidedly mixed bag. But, then again, aren’t they all?

Why Congress Shouldn’t Panic about Eavesdropping

Rep. Rush Holt (D-NJ) has been a real leader in the fight to restore meaningful judicial oversight of domestic intelligence gathering activities. When the Democratic leadership unveiled its initial FISA reform proposal last fall, Rep. Holt felt the legislation had inadequate judicial safeguards and introduced an alternative bill with stronger judicial oversight. Holt successfully persuaded the Democratic leadership to make key changes to the legislation which became the FISA reform bill that ultimately passed the House in November.

Yesterday, Rep. Holt gave a great speech on the House floor urging his colleagues not to succumb to the administration’s scare tactics:

The PAA allows the President to conduct surveillance for virtually any reason with absolutely no oversight by a court, which means the administration’s surveillance activities don’t have a meet an independent judicial standard for appropriateness. It has been demonstrated that when officials must establish before a court that they have reason to intercept communications, we get better intelligence than through indiscriminate collection and fishing expeditions.

Passing this extension, rather than letting the PAA expire, achieves nothing from an operational point of view. This is a political calculation intended to facilitate our negotiations with the Senate and the White House. I disagree—this would not improve our negotiating position. If the PAA expires, all current surveillance orders issued under its authority will continue in effect until they expire. It’s also important to note that any existing PAA orders that continue in effect after the act’s expiration date are general enough to allow any necessary surveillance activity that may be required…

The House passed a good FISA modernization bill late last year (the RESTORE Act), and any House-Senate conference discussion on how to modernize FISA should start with that bill. In the meantime, our intelligence services will continue have the tools they need to protect us.

Allow me to expand a bit on Holt’s argument. The Protect America Act states that “the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information.” And the authorization “is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.” This suggests that a single “authorization” is not limited to a particular investigation or target, but can be used to approve general, open-ended wiretapping programs such as the one uncovered by the New York Times in 2005.

Most likely, the administration has issued “authorizations” for its various warrantless surveillance programs. These authorizations will not expire when the Protect America Act sunsets; they will continue in force for a year, which means that the earliest any of them would expire is next August. And if, after the Protect America Act sunsets, a surveillance need comes up that’s not covered by an existing “authorization,” the government will still have the ability to obtain a warrant the old-fashioned way through the original FISA provisions. Indeed, FISA has always permitted the government to begin eavesdropping immediately and request an emergency warrant up to 72 hours after the fact.

In short, nothing catastrophic will happen if Congress doesn’t enact new legislation this week. The intelligence community will have all the authority it needs to continue its surveillance of suspected terrorists. Yet the president is doing his best to create an atmosphere of panic because he believes that will help him stampede Congress into approving an unnecessarily broad expansion of executive power. Congress should keep its wits about it and take the time it needs to craft balanced legislation that gives the intelligence community the flexibility it needs while preserving the principle of judicial oversight and rejecting demands for retroactive immunity for lawbreaking telecom companies.

Hillary’s Choices

When a politician has a vulnerability, there are different ways to deal with it. You can ignore it, stonewall questions, pretend it isn’t there. You can joke about it, as Ronald Reagan did with his age. Or you can embrace it, make it a virtue. In his early campaigns the rumpled and overweight Barney Frank (who has long since slimmed down and bought better suits) campaigned on the slogan “Neatness isn’t everything. Re-elect Barney.”

Hillary Clinton seems to have adopted the Barney Frank approach on the issue of corruption. Since 1991 or thereabouts, ethical questions have swirled around the Clintons–Whitewater, commodity trading, billing records, small-time grifters in the Cabinet, Travel Office firings, campaign fundraising, right on up to the midnight pardons as they left the White House. So she might have tried to run a squeaky-clean campaign to make people forget all that ancient history.

Tuesday night in Florida, however, it became pretty clear that that wouldn’t be her strategy. At her Florida victory speech, she was introduced by one of her national campaign co-chairs, Rep. Alcee Hastings. Back in 1988, Hastings was a federal judge. He was impeached by the House of Representatives on charges related to bribery and was removed by the Senate. Rep. John Conyers, now chairman of the Judiciary Committee, was one of the House impeachment managers. The House vote was 413 to 3.

On January 20, 2001, Bill Clinton pardoned William Borders, who was convicted and jailed in connection with the bribery of Hastings.

It looks like the Clintons are not embarrassed to be associated with other politicians who have been accused–and impeached–and indeed actually removed from office for unethical behavior. “Ethics isn’t everything. Bring back the Clintons.”

State of the Earmarks

Last night’s State of the Union address didn’t contain much in the way of new policy proposals. As I note in a podcast (Subscribe!), this is largely a reflection of President Bush’s limited political capital because of his lame duck status, low approval ratings, and the Democratic majority in Congress.

But one issue Bush did indicate he will tackle is the rampant earmarking on Capitol Hill. Bush said he would take a couple actions on this front – and while these might be modest steps in the right direction, the results will be far from earth shattering.

First, Bush will “issue an Executive Order that directs Federal agencies to ignore any future earmark that is not voted on by the Congress.” This is good step and one that fiscal conservatives on Capitol Hill have been urging for years. The President can ignore certain earmarks because Congressional appropriators routinely exclude them from the legislative text of spending bills. Instead they “airdrop” many earmarks into conference reports at the last minute. These reports are not technically part of the law, but serve as accompanying documents to inform the Executive Branch of Congress’s intentions. Appropriators do this to circumvent transparency measures and make questionable earmarks immune to points of order or striking amendments by critical members. Because the Executive branch has always played along, it has never been necessary for Congress to act otherwise.

Until now.

With the new Executive Order in place, Congress will presumably be forced to include earmarks in legislative text rather than putting them in nonbinding conference reports. This will likely increase transparency to some degree, but it’s unlikely to have a significant impact on earmarks beyond that. Enough support resides in Congress to continue to earmark funds and easily defeat procedural hurdles along the way. Furthermore, Bush missed a huge opportunity here. He could have applied the Executive Order to the current 2008 fiscal year and wiped out thousands of earmarks in the process.

Bush also indicated that he would veto appropriations bills that do not reduce the number or cost of earmarks by 50 percent. This might encourage appropriators to cut earmarks per the president’s request. But there is a danger here – rather than shooting for a significant reduction in earmarks, Congressional leaders could instead dole out more money for members’ pet projects in order to build a vested voting block large enough to override a veto. In terms of passing the annual spending bills, this could be an easier path for Congress to follow, as most spending bills already pass with large majorities. The result could be a net increase in earmarks.

Still, President Bush has made a good faith effort toward improving the earmarking process. And by discussing earmarks during his final State of the Union address, he brought a national spotlight to the issue. But few significant improvements will occur until members of Congress stop coveting earmarks and voters stop returning earmarkers to Congress.

My Least Favorite False Note on Trade in Last Night’s SOTU

My colleague Dan Griswold has a post below about some of the good things President Bush said in his State of the Union address last night (transcript here). While the President deserves praise for the remarks he made about the importance of trade to the American economy, he made much of the importance of exports and of opening markets overseas, with only a cursory glance at the benefits of imports.

That mercantilist rhetoric, in my opinion and in the opinion of my colleague Brink Lindsey, has boxed the administration and other lawmakers into a corner: people now erroneously assume that if the exports fail to materialize, or if the trade deficit worsens, then the trade policies have been a failure. The present skepticism about trade deals (even allowing for the fact we are in fully-fledged campaign mode) is a direct consequence of that flawed thinking.

Putting aside my ranting about the general state of public discourse about trade, though, there was one part of the SOTU address that particularly struck me as misguided. In making the case for trade deals, President Bush talked about the negative effects of trade liberalization on some workers and made a pitch for renewing trade adjustment assistance:

for some Americans, trade can mean losing a job, and the federal government has a responsibility to help.