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Roger Clarke **
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The purposes of this paper are limited and specific. The following scope limitations are drawn to attention.
1. The investigation is conducted in an instrumentalist rather than a philosophical context. It is concerned with contemporary and likely near-future realities, and appropriate responses to them. To the extent that practical implications are apparent to the author in the literatures of philosophy, fiction, literary criticism and media studies, they have been incorporated into the analysis; but no systematic review of those disciplines has been undertaken.
In particular, the paper emphatically does not indulge in speculative, techno-utopian discussion of the kinds prevalent in transhumanism (Bostrom 2005), posthumanism, mind-uploading and the singularity (a looming explosion of technological advancement that it is postulated will 'go critical' and usher in a vastly different culture later this century).
2. The focus is on interventions of a physical nature, primarily by means of electro-mechanical artefacts. The paper considers biological technologies only to the extent necessary to enable physical enhancements to be satisfactorily interfaced with the human body. It largely excludes consideration of cognitive extensions to human capabilities.
3. Interventions are encompassed that have an effect on the functionality of the body, rather than being merely cosmetic or ornamental, such as glass eyes, breast implants, body art and body modification for aesthetic reasons. However, some reservations are necessary about the wisdom of completely excluding artistic interventions in view of the cross-over that exists between art and functionality in the work of Stelarc.
4. The paper is concerned with rights afforded to individuals by the laws of the jurisdictions in which they live. It does not address the questions of 'fundamental rights', 'moral rights' or 'natural law'.
The literature reviews conducted during the preparation of the paper on 'Cyborg Rights' uncovered only a limited number of treatments of the specific topic. In the absence of an established body of theory and evidence, the approach adopted in the research reported on in the paper was to investigate dimensions of the issues through case studies of various cyborgs operating in various contexts. In order to ensure richness of material, the set intentionally included a diversity of prostheses, of orthoses, and of contexts.
The assistance of vision through the use of shaped glass dates back at least two thousand years, of lenses at least one thousand years, of spectacles at least 700 years, and of contact lenses 500 years in principle and 200 years in practice. An emergent right to have access to sight-corrective prostheses can be detected in health and welfare systems that provide them on a cost-less or heavily subsidised basis. A similar development path can be traced in relation to hearing-aids.
Particularly in the USA and the UK, military service personnel returning from war-zones have better access to opportunities for replacement limbs than, for example, victims of industrial and traffic accidents. A recent review of research work on neural control of artificial arms funded by the U.S. Defense Advanced Research Projects Agency (DARPA) is in Adee (2009). Another group that has superior access to expensive, new treatments is the aging rich. A ready justification for this is that the research and experimentation needed demands funding, and only the rich and the government can provide it.
By mid-century, it is conceivable that shoulder reconstructions, hip-joint replacements and knee replacements could have become a legitimate expectation for all who need them, rather than the expensive option for the war-maimed and the well-off and/or well-insured that they generally are at present.
Spectacles and hearing-aids recover impaired senses, and hence enhance quality of life. Even wheelchairs and replacement limbs can be argued to be facilities affecting quality-of-life rather than survival. A range of prostheses are likely to be associated not merely with improved quality of life but also increased life expectancy. Examples include stents, pacemakers, renal dialysis and artificial hearts and kidneys.
Debate can reasonably be anticipated as to whether patriotism and financial wealth should be such dominant factors in determining the priority of allocation of quality-of-life but especially matter-of-life-and-death prostheses.
A further issue arises where a person's survival is dependent upon one of the various categories of life support systems. When a person decides that their quality-of-life is too low, they may demand the right to disconnect from their external prosthesis, in full knowledge of the consequences. They may also demand the right to provide an enduring power of attorney or advance directive, instructing their next-of-kin and treatment professionals to disconnect the device under particular conditions (such as brain death).
Some sight-impaired people depend on guide dogs, and many mobility-impaired people depend on a walking-stick, or access to their own custom-designed wheelchair. In some jurisdictions, wheelchair access to public buildings has become a legal obligation, and hence effectively a right.
Contention has arisen where such external prostheses have been banned from premises, e.g. dogs, and specifically seeing-eye dogs, from restaurants, for health reasons. In some circumstances, a ban on the use of a personal wheelchair within particular premises - such as in an airport or on an aeroplane - may represent a denial of access to important services, and thereby harm the principle of equality of rights for the impaired. A variety of external prostheses create further challenges. For example, portable renal dialysis machines require both space and power.
Some endo-prostheses have already given rise to difficulties, such as pacemakers and artificial hips, which may be incompatible with airport security equipment. The prospect also exists of more direct security threats, such as hands made of steel (exo-orthoses) and implants that emit signals that could interfere with aircraft control systems (endo-orthoses).
The use of anklets with embedded chips to facilitate detection of non-compliance with movement restrictions was first officially sanctioned in 1983, in New Mexico. Their use has spread to some other jurisdictions. They have been applied not only to prisoners, but to parolees as a condition of parole, and even to remandees (who have yet to be convicted of an offence, and may well never be). This represents an extension of the prison beyond the prison walls and reduces costs to the state. Generally, an anklet is a form of overt involuntary exo-orthosis.
There is an economic incentive to extend use of such devices to further categories of people. Some may be already institutionalised, such as dementia sufferers, comatose hospital patients, and perhaps other kinds of patients as well. Other categories can be seen as 'the virtually institutionalised', such as recidivist criminals and detested (ex-?)criminals such as those who have completed their sentences for child sex offences.
Chips have been implanted in livestock and pets since abut 1990. Chips have been offered for implantation in humans since about 1998, first in tooth-enamel and then in soft tissue. There have been a number of reported instances of chips being implanted in humans (Masters & Michael 2006), although to date no reliable reference has been located for them being imposed involuntarily. A chip-implant is a form of endo-orthosis, and may be voluntary, overt involuntary, or even covert involuntary in nature (Michael & Michael 2009).
Like other endo-prostheses and endo-orthoses, the chip-implantation process may give rise to infection, it may be rejected by the body, and it may interfere with tissue, organs or bodily functions (CEJA-AMA 2007, Foster & Jaeger 2007). In 2004 (some years after it had first been implanted in humans), the U.S. Food and Drug Administration (FDA) cleared the Verichip for implantation without breaching health laws. The decision was widely but misleadingly reported as being legal and even moral approval by the US government for the conduct of chip-implantation in humans.
Many categories of handicapped sportspeople, particularly those participating in athletics and swimming, compete against others with similar disabilities and/or levels of disability. Commonly, the handicapped are protected from the prosthetes, and both the handicapped and prosthetes are protected from the able-bodied, e.g. by segregation into separate events or at least categories.
Wheelchair racers compete separately from the able-bodied as well. However, they go faster than runners. In the case of the New York Marathon, for example, the winner of the wheelchair event is about 35% faster than the winner of the foot-race. In such circumstances, segregation into separate events works the other way around, protecting the able-bodied from orthots. The able-bodied might be precluded from competing in wheelchair events. Alternatively, they might be permitted to compete, and they might even demand the right to do so.
A particular case of sports orthosis was drawn to attention in the presentation accompanying Clarke (2005a), in Hood (2005a and 2005b) and in some other media outlets around that time. Oscar Pistorius is a South African athlete, who competes in 200m and 400m events. In 2005, it was speculated that, if he continued his improvement, he would qualify for the 2008 Olympic Games, and by 2012 could be at least a semi-finalist. Oscar was born without lower legs, and has artificial legs that include carbon fibre blades.
The International Association of Athletics Federations (IAAF) determined that Pistorius' artificial legs "should be considered as technical aids which give him an advantage over other athletes not using them" (Robinson 2008). They accordingly banned him from competing against able-bodied athletes at the 2008 Olympics. This was based on an amendment to their rules, passed the previous year, that precludes use of "any technical device that incorporates springs, wheels or any other element that provides a user with an advantage over another athlete not using such a device", i.e. 'orthoses are banned'.
Pistorius challenged the ruling, and won, on the basis that the IAAF had failed to show that the legs gave him sufficient advantage (i.e. that the exo-prostheses were in fact exo-orthoses). Due to an injury-plagued preparation, however, he missed the qualifying standard by 0.70 seconds and did not satisfy the criteria for selection for his national team.
A media report has subsequently suggested that the IAAF may now have the required evidence (SD 2009), and hence may now succeed in banning double-amputees using such devices in able-bodied events. Ironically, the brand-name of the legs Pistorius uses is 'Cheetah' - doubtless intended to imply speed, but perhaps now to be interpreted as an admission that they provide an unfair advantage to orthots over able-bodied athletes.
There are many ways in which sportspeople, and particularly professionals, seek advantages over their competitors. As a result, the administration of professional sport has been at the leading/bleeding edge of many issues arising from prostheses and orthoses. Exhibit 1 outlines some of the challenges confronted in recent years that may offer insights concerning where boundaries are judged to lie, and what kinds of rights are involved.
RFID chips respond to challenges from other devices, commonly making available to them a chip-identifier, and in some circumstances other data as well. Such chips are commonly 'promiscuous' in that they will respond to any demand for the data; but various security safeguards may be built in, to protect against various threats.
The passports issued by some countries now carry an RFID chip. Tollway payment cards are also commonplace - and most such applications have been designed in such a manner as to destroy the right to use roads anonymously. Public transport tickets, event tickets, and perhaps airport boarding passes, may be moving in the same direction. Some jurisdictions are seeking to add RFID chips to drivers' licences and, where they exist, to national id cards. Some consumer goods carry RFID chips through the distribution system from factory to retail outlet, and some of those may remain in the goods when they are purchased. Similar technologies can be used as a means of covert tracking of articles such as bags and cars, and hence as a means of covert tracking of the individuals who travel with them (Michael & Michael 2005).
Items that carry an RFID-chip and that are closely associated with an individual represent a form of external or exo-orthosis. Individuals who have such chips implanted in them have an endo-orthosis. As discussed above, issues arise concerning knowledge and consent, and hence duress, sufficient cause, and due process.
It is possible that RFID chips may become a mainstream component of the way in which particular services are provided (e.g. the checking of passports and visas at border-crossings, entry to events, payment of tolls, payment of public transport fares). If so, then people who lack the orthosis may suffer disadvantages, and may even be denied some categories of service.
Some existing laws act as disincentives against the offering of prostheses and orthoses. For example, in some jurisdictions, all forms of artefact are subject to requirements relating to 'merchantable quality'. Further, harm that arises from negligence may be subject to strict liability provisions. Endo- and exo-artefacts bring with them the risks of infection and rejection. Hence a concern for purveyors of prostheses and orthoses is that they may be held liable for malfunctions, contingent harm or side-effects.
People who develop or install some forms of prostheses, and particularly orthoses, may be subjected to opprobrium from some segments of the public. In some cases, this can be readily depicted as 'luddite' behaviour, in the sense that it is a rejection of technology per se. Some opponents are opposed to particular artefacts rather than artefacts in general, because they perceive their use to be 'playing God', against nature, or against human nature.
Orthoses may also be judged as violating principles and laws relating to human dignity, human inviolability, human autonomy and self-determination. An EU Opinion (i.e. without legal force) states that "access to ... implants for enhancement should be used only to bring [people] into the 'normal' range for the population, if they so wish and give their informed consent". Hence, in the terms used, in this paper, it supports prostheses.
On the other hand, the Opinion argues for access to only very limited forms of orthoses, specifically those that are "to improve health prospects (e.g. to enhance the immune system to be resistant to HIV)"; but this would not extend to, for example, the enhancement of hearing, vision and motor skills beyond the normal human range. It argues in effect that all other orthoses "should be banned", including those that "enhance capabilities in order to dominate others" and those that are "for coercion towards others who do not use such devices" (EU-EGE 2005, p. 33, echoed in FIDIS 2008b, pp. 59-60).
The notion of supremacism is concerned with the belief that some category of being is superior to or more worthy than others, and that the interests of that category should be the primary basis for value-judgements and decision-making. Some cultures have valued nature very highly, whether as a whole, or elements of it, such as mammals, or particular mammals such as primates, cetaceans and dogs. Many human societies, on the other hand, have been at least strongly anthropocentric and arguably anthropo-supremacist. The eugenics movement of the first half of the twentieth century aimed to develop more worthy humans, using biological interventions. It appears inevitable that some applications of cyborgisation by means of electro-mechanical artefacts will be - whether subconsciously, tacitly, or expressly - intended to achieve much the same ends as eugenics.
The notion of techno-supremacism does not appear to have yet gained currency. Evidence for its emergence can be found, however, in the military, national security and law enforcement fields. For example, there has always been great difficulty in conducting prosecutions for acts performed in war-zones. Moreover, national military forces are commonly accused of ensuring that most acts taken against enemies, and many against local civilians, are effectively exempt from prosecution, particularly prosecution outside the military's own judicial system. Hence there is a sense in which national armed forces and their employees have rights that normal human beings do not.
Warfare is not only waged by armed forces raised and run by governments. Mercenaries have a long history, not least because of the profitability of the activity. In recent decades, mercenaries have achieved considerable public relations success, and shifted public perceptions, by means of new labels such as 'public military corporations' (PMCs). The services of PMCs include the supply of materiel, combat, intelligence-gathering and analysis, and the conduct of interrogations, including the use of torture.
The difficulty of conducting prosecutions for actions undertaken in war-zones applies to mercenaries/PMCs as it does to national military forces. There is also considerable evidence from recent wars in the Middle East that PMCs enjoy some degree of semi-formal legal shielding, much like government soldiers.
The implicit rights of human soldiers and mercenaries/PMCs to perform acts of violence without risk of legal retribution is relevant to this analysis because soldiers commonly use external orthoses in the form of weapons, and exo-orthoses such as protective suits. Further, there have been long-running projects to enhance soldiers, to improve both their effectiveness in neutralising the enemy and their capacity to survive attacks.
Civilian security personnel also have access to external orthoses such as batons, shields, radios and cameras, and to exo-orthoses such as protective suits. Where they can reasonably demonstrate the existence of danger or provocation, they may well argue for freedoms to act, of much the same kind as soldiers enjoy in battlefield contexts. A countermeasure against excesses by law enforcement agencies has emerged, in the form of 'sousveillance' (Mann et al. 2003). A form that sousveillance commonly takes is the augmentation of protestors and protest-observers with wearable cameras and video transmission capabilities (Mann 1997, 2009).
This cluster of mini-cases gives rise to at least two kinds of arguments in relation to cyborg rights. Firstly, the calls for more effective armoured protection for soldiers against Improvised Explosive Devices (IEDs) is evidence of an at least emergent right of a soldier to orthoses of a protective nature. Secondly, military and security orthots inherit what are effectively rights against prosecution, particularly for acts of violence in war-zones. Thirdly, because of their superior capabilities, military and security orthots may become leading-edge claimants for extended rights to exercise their extended powers. Finally, there are claims for a civil right to observe, transmit and record the behaviour of military and law enforcement forces.
Adee S. (2009) 'Winner: The Revolution Will Be Prosthetized ' IEEE Spectrum, November 2009, at http://spectrum.ieee.org/robotics/medical-robots/winner-the-revolution-will-be-prosthetized/0
CEJA-AMA (2007) 'Radio Frequency ID Devices in Humans' Report of the Council on Ethical and Judicial Affairs, CEJA Report 5-A-072007, American Medical Association, at http://www.ama-assn.org/ama1/pub/upload/mm/467/ceja5a07.doc
EU-EGE (2005) ' Ethical Aspects of ICT Implants in the Human Body' Opinion of the European Group on Ethics in Science and New Technologies to the European Commission No. 20, 16 March 2005, at http://ec.europa.eu/european_group_ethics/docs/avis20_en.pdf
FIDIS (2008b) 'A Study on ICT Implants' D12.6, Future of Identity in the Information Society, 30 September 2008, at http://www.fidis.net/fileadmin/fidis/deliverables/fidis-wp12-del12.6.A_Study_on_ICT_Implants.pdf
Foster K.R. & Jaeger J. (2007) 'RFID Inside' IEEE Spectrum, March 2007, at http://www.spectrum.ieee.org/mar07/4939
Hood M. (2005a) 'Running against the wind' IEEE Spectrum (June 2005), at http://spectrum.ieee.org/biomedical/bionics/running-against-the-wind
Hood M. (2005b) 'Born to run' IEEE Spectrum (November 2005), at http://spectrum.ieee.org/biomedical/bionics/born-to-run/0
Mann S. (1997) 'An historical account of the 'WearComp' and 'WearCam' inventions developed for applications in 'Personal Imaging'' Proc. ISWC, 13-14 October 1997, Cambridge, Massachusetts, pp. 66-73, at http://www.wearcam.org/historical/
Mann S. (2009) 'Sousveillance: Wearable Computing and Citizen 'Undersight' - Watching from Below Rather Than Above' h+ Magazine, 10 July 2009, at http://www.hplusmagazine.com/articles/politics/sousveillance-wearable-computing-and-citizen-undersight
Mann S., Nolan J. & Wellman B. (2003) 'Sousveillance: Inventing and Using Wearable Computing Devices for Data Collection in Surveillance Environments' Surveillance & Society 1, 3 (June 2003) 331-355, at http://www.surveillance-and-society.org/articles1(3)/sousveillance.pdf
Masters A. & Michael K. (2006) 'Lend me your arms: the use and implications of humancentric RFID' Electronic Commerce Research and Applications 6,1 (2006) 29-39, at http://works.bepress.com/kmichael/40
Michael M.G. & Michael K. (2009) 'Uberveillance: Microchipping People and the Assault on Privacy' Quadrant LIII, 3 (March 2009) 85-89, at http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1716&context=infopapers
Robinson J. (2008) 'Amputee Ineligible for Olympic Events' The New York Times, 14 January 2008, at http://www.nytimes.com/2008/01/14/sports/othersports/14cnd-pistorius.html?_r=1&hp=&pagewanted=print
SD (2009) 'Oscar Pistorius' Artificial Limbs Give Him Clear, Major Advantage for Sprint Running, New Study Suggests' Science Daily, 18 November 2009, at ' http://www.sciencedaily.com/releases/2009/11/091117184539.htm
Michael M.G. & Michael K. (2005) 'Microchipping people: the rise of the electrophorus' Quadrant XLiX, 3 (March 2005) 22-33, at http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1373&context=infopapers
Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., and a Visiting Professor in the Department of Computer Science at the Australian National University.
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