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PrePrint of 2 February 2011
Published in IEEE Technology and Society 30, 3 (Fall 2011) 49-57
Roger Clarke **
© Xamax Consultancy Pty Ltd, 2010-11
Available under an AEShareNet licence or a Creative Commons licence.
This document is at http://www.rogerclarke.com/SOS/CyRts-1102.html
This supersedes the previous version at http://www.rogerclarke.com/SOS/CyRts-1003.html
which in turn superseded the first version at http://www.rogerclarke.com/SOS/CyRts-1001.html
The first generation of cyborgs is alive, well, walking among us, and even running. Pacemakers, renal dialysis machines and clumsy mechanical hands may not match the movie-image of cyborg enhancements, but they have been the leading wave. The legs of sprinter Oscar Pistorius, and implants of both the cochlear and RFID varieties, make more substantial changes to individuals. They also pose greater challenges to society as a whole.
Cyborgisation will give rise to demands for new rights. People who have lost capabilities but have not yet got the relevant prostheses will seek the right to have them. Some people will demand the right not just to recover what they are missing, but also to enhance themselves. Others will demand the liberty not to have prostheses imposed on them. Enhanced humans will seek additional rights to go with the additional capabilities that they have. The political processes involved in lobbying for and resisting these desires will take many and varied forms.
Professional engineers have an obligation to anticipate these developments, and to brief political, social and economic institutions on their nature, impact and implications. They have to date failed to do so. The rate of change is sufficiently brisk that action is urgent.
Recent decades have seen an increasing incidence of interventions with the bodies of human beings. These interventions raise a variety of questions about rights. Some relate to the right to have the intervention performed, or not performed. Others involve the rights of people who have already been the subject of an intervention.
The author addressed the question of 'human-artefact hybridisation' several years ago. The purpose of the research reported on in this paper is to build on brief comments made in s.5.2 of Clarke (2005a), and somewhat extended in brief companion papers (Clarke 2005b, 2005c), by conducting a deeper analysis of the rights aspects of human-artefact hybridisation.
The paper's scope is intentionally limited, in several ways that are outlined in the Supplementary Materials. Firstly, the motivation is instrumentalist not philosophical. Secondly, the focus is on interventions of a physical, rather than of a biological or cognitive nature. Further, the analysis is concerned with the functionality of the body, to the exclusion of merely cosmetic or ornamental interventions. Finally, it considers legal rights, not fundamental rights or moral rights.
The paper commences by defining the scope, investigating the concepts involved, and proposing a set of definitions to support the subsequent analysis. The notion of rights is briefly surveyed. The issues that arise are investigated by means of number of case studies. This enables the identification of 20 candidate rights. A discussion of alternative ways in which change may come about leads to conclusions about the responsibilities of the engineering profession.
This preliminary section discusses the notion of 'cyborg', commencing with its origins. Two forms of intervention with the human body are distinguished, which it is argued give rise to different implications. Key terms are defined, in order to provide a basis for the analysis that follows.
The term 'cybernetics' was coined by Norbert Wiener in 1948. It referred to the then-new notion of controlling human-designed processes through feedback and response, in ways similar to those evident in natural organisms (Wiener 1948, 1949). He contrived the word from the Greek word for 'steersman'.
The term 'cyborg' is a contraction of 'cybernetic organism', and entered the language in the early 1960s. Its origins are commonly attributed to two US research scientists, who used it to refer to an enhanced human being who could survive in extraterrestrial environments, or, in their own words "the exogenously extended organizational complex functioning as an integrated homeostatic system unconsciously" (Clynes & Kline 1960).
More generally, a cyborg is a human with whom mechanical and/or electronic parts have been integrated. Driven by feature films that depict imaginings of sci-fi authors, popular culture envisages a cyborg as necessarily having functionality that has been extended beyond that of a normal human being. One of the OED's two definitions is steady and unambitious: "an integrated man-machine system", whereas the other is "a person whose physical tolerances or capabilities are extended beyond normal human limitations by a machine or other external agency that modifies the body's functioning" (emphasis added). For the purposes of this analysis, it will be necessary to distinguish enhancements from more mundane interventions.
A related notion is 'bionic implants'. That concept is, however, largely confined to the entertainment arena, having originated in a 1973 novel called 'Cyborg', which gave rise to two television series called 'The Six Million Dollar Man' and 'The Bionic Woman' - each of whom had 'bionic' eyes, legs and arms. The OED's definition refers to "an artificial, esp. electromechanical, device that replaces part of the body; having ordinary human capabilities increased (as if) by the aid of such devices". It dates its use in this manner to the early-to-mid 1970s.
In popular culture, a cyborg's enhancements are physically inserted into the person. For the purposes of the analysis conducted in this paper, however, it is important to also encompass circumstances in which this condition is not satisfied. One important consideration is the need to include the notion of 'wearable computing'. This term has been in use since at least 1980, when Steve Mann applied it in particular to wearable cameras and head-mounted displays. More generally, see Rhodes (1997), and the product catalogue at Wearables Central. Reflecting this line of technological development, Mann proposed a broad definition of a cyborg as "a person whose physiological functioning is aided by or dependent upon a mechanical or electronic device" (Mann & Niedzviecki 2001, emphasis added).
The formulation of an appropriate definition for 'cyborg' is deferred until after consideration of two different kinds of device.
The OED defines a prosthesis or prosthetic as "[a] replacement [for] defective or absent parts of the body [in the form of] artificial substitutes". Its traces its use in this manner to 1706. Drawing on the OED, Mann & Niedzviecki (2001) and Clarke (2005a), this paper adopts the following definition:
In one sense, this definition is narrower than the OED, in that, reflecting the instrumentalist purpose, it excludes merely cosmetic or ornamental artefects such as glass eyes and breast implants, and requires the artefact to enable the performance of a function.
On the other hand, this approach extends beyond the OED's 'new body-part' limitation to encompass the recovery of bodily function by means other than the installation of a substitute body-part. For example, a new and equivalent part could be added without removing the old one (as in renal dialysis); or a quite different part could be introduced (such as a heart pacemaker); or an existing body-part could be adapted by means of an artefact (such as a stent), without directly replacing the missing or defective one.
Further, by avoiding any requirement that the artefact be installed inside the body, the definition opens up three sub-categories, reflecting different relationships between the prosthesis and the human body:
Common usages of the term 'prosthesis' focus on endo-prostheses and to some extent exo-prostheses, but largely exclude external alternatives. The broader scope is necessary here, however, partly to reflect its 'space-suit' origins, but primarily because the purpose is to examine the direction in which legal rights may need to be developed.
The OED defines prosthetics as "The design, manufacture, and fitting of artificial substitutes for missing or defective parts of the body; a branch of dentistry, surgery, or medical technology dealing with this", and traces its emergence to 1897. This paper uses the term more broadly, to refer to the technology of prostheses as a whole, whether they are substitutes or complements, and whether they are endo-, exo- or external.
The OED defines an orthosis or orthotic as "An external orthopaedic appliance or apparatus, such as a brace or splint, that serves to support, assist the function of, or prevent movement in a body part such as a limb or the spine". It traces its emergence to 1857, but the usage is primarily from the mid-twentieth century. Used in that manner, its meaning overlaps with either or both of 'external prosthesis' and 'exo-prosthesis', as those terms were defined in the previous sub-section.
This paper adopts a rather different approach. Again following Mann & Niedzviecki (2001) and Clarke (2005a), the following, more expansive definition is proposed:
Whereas an artefact that assists in the recovery of normal sight is a prosthesis, one that provides 'sight' beyond the normal human-visible spectrum (e.g. infra-red detection) is an orthosis. Similarly, a replacement hand or leg may be a prosthesis if it recovers or replicates normal functions, or an orthosis if it extends them in some way. This approach therefore provides a term for a category of artefact that has significantly different implications from the notion of prostheses as it is proposed in this paper. The FIDIS project drew the same distinction in relation to 'ICT implants', distinguishing those that "restore or repair human capabilities" - endo-prostheses, as the term is used in this paper, and those that "enhance ... human capabilities" - endo-orthoses (FIDIS 2008b, pp.9-10, emphases in original).
The definition of orthosis enables a parallel set of terms to be applied, in order to distinguish the following sub-categories:
Orthotics is defined by the OED as "The branch of physiotherapy that deals with the use of orthoses; the design and fitting of orthoses", and is traced to 1957. It is used here more broadly, to refer to the technology of supplementary artefacts as a whole, and whether they are endo-, exo- or external.
Terms are neede for the various categories of person arising from prosthetic and orthotic processes. The definitions adopted are as follows:
The definition adopted for cyborg reflects the preceding discussion, and draws particularly on the line of reasoning in Mann & Niedzviecki (2001), which defined a cyborg as "a person whose physiological functioning is aided by or dependent upon a mechanical or electronic device" (emphases added), Clarke (2005a), and (FIDIS 2008b):
This approach differs from the OED's second definition of cyborg, which requires the person's capabilities to be "extended beyond normal human limitations", and hence is limited to people enhanced by what is called in this paper an orthosis. For the purpose of analysing cyborg rights, it is important to encompass both prosthetes and orthots.
The Clynes & Kline (1960) notion of a cyborg also excluded prostheses, because it extended from an external orthosis (a space-suit) to exo- and endo-orthoses. In addition, their context of use was highly specific (extra-terrestrial environments). Further, the orthosis needed to be substantially integrated with the human, so that it could be used unconsciously. This may be a desirable attribute, but it is unnecessary to impose it as a definitional feature.
The following further terms are proposed, building on the above definitions:
Additional distinctions need to be drawn, to reflect the extent to which the person is an informed and willing subject, or the prosthesis or orthosis has been imposed on them:
Human rights may be abstract claims or interests, or they may be grounded in religion or philosophy and asserted to be fundamental, axiomatic and inalienable. This paper, however, is not considering philosophical notions or the justifications for laws, but rather laws themselves as they relate to prosthetes and orthots. The review undertaken is of necessity brief and superficial. All aspects of the topic are well-known, and hence little recourse is made to the formal literature. Otherwise unattributed quotations in this section are from relevant Wikipedia articles in the first quarter of 2010.
The term 'rights' is used in this paper in the sense of "legal, social, or moral freedoms to act or refrain from acting, or entitlements to be acted upon or not acted upon". In practical terms, the protection of a person's rights depends on:
The history of legal authority for rights is long and tortuous. Commonly recognised steps along the way include Magna Carta (1215), the English Bill of Rights (1689), the French Declaration of the Rights of Man and of the Citizen (1789) and the U.S. Bill of Rights (1789-1791). In many countries, at least some rights are entrenched in the Constitution. Some rights, however, (and in some countries, all rights) depend on legislation that can be overturned by a mere Act of the Parliament and/or (in common law jurisdictions) interpretations of case law by courts.
International codification of rights has been achieved, in the following primary forms:
A useful distinction can be made between two categories of rights:
Rights may be declared in a positive manner, but they also arise as a corollary of obligations imposed on others. A relevant example of this is the widespread obligation on organisations to ensure that buildings that they occupy are accessible by people in wheelchairs. The obligation on the organisation implies a right of individuals who are dependent on wheelchairs for mobility to have convenient access to those buildings.
Another distinction of relevance to the analysis that this paper conducts is between three generations of rights:
An important aspect of rights is that they have been subject to adaptation over time. For example, until the nineteenth century, many commonly accepted rights applied to only some of the population. Even in 'modern, western democracies', a variety of those inequalities persisted well into the twentieth century, and some into the twenty-first. Developments during the late twentieth century have led to calls for additional rights to be recognised. For example, Internet-era rights were argued for even as the Internet was becoming widely available (Clarke 1995, Barlow 1996).
Rights are fragile. One example from the first decade of the new century is the substantial numbers of 'national security' over-rides of longstanding protections in 'free nations' that were justified by claiming that they are needed to thwart terrorist attacks. Another contrary trend is the resurgence of the collectivist perspective. In East Asia, this can be seen as a reaction against the western European tradition of humanism. Even within 'western-style democracies', however, some critics perceive the freedoms arising from human rights to be excessive or easily abused, and have argued for charters to emphasise responsibilities as well as rights. Concerns have also been expressed about the inherent dominance of the interests of the species homo sapiens over other animals and the plant kingdom, or over nature as a whole. The rise of environmentalism may result in further qualifications to human rights that have significant implications for resources, such as freedom of movement.
It is reasonable to expect that rights will continue to be subject to adaptation, and that new rights will emerge, and old rights will be modified, expanded and contracted. The purpose of this paper is to investigate adaptations that may be needed in order to deal with cyborgisation.
The literature reviews conducted during the preparation of this paper uncovered only a limited number of treatments of the specific topic. A sci-fi literature exists, which investigates many aspects of cyborgs, but primarily as threats to humankind. A techno-utopian literature considers cyborgs as posthumans, a philosophy literature considers moral and ethical aspects (although it focusses primarily on biological and cognitive enhancements rather than electro-mechanical artefacts), and there are derivative literary criticism and media studies literatures.
Few papers have been located, however, that adopt the instrumentalist perspective used in this paper, that examine cyborgs as they exist at present and appear likely to increasingly exist in the near future, and that consider rights as they apply to augmented human beings. Important exceptions include EU (2005) and FIDIS (2008b). See also the questions asked in the final paragraph of Warwick (2003) and in a use case scenario in FIDIS (2008a). Also relevant are the "ironic but serious proposal for a Cyborg Bill of Rights" in Gray (2001, p. 31), and the counter-argument in Levy (2003) to the effect that the challenges arising from cyborgisation are not radical.
In the absence of an established body of theory and evidence, the approach adopted in the research reported on in this 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. Space limitations preclude more than a description of a single case and very brief overviews of the remainder.
The case described here relates to the use of anklets with embedded chips to facilitate detection of non-compliance with movement restrictions. This 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.
The other cases investigate real-life and near-future scenarios. Some relate to quality-of-life and to matter-of-life-and-death prostheses, others extract lessons from handicapped and professional sports, and yet others consider the arguments of proponents and opponents, including in military contexts. The descriptions are in the Supplementary Materials.
The following section summarises the evidence arising from the complete set of cases, in order to infer possible new forms of rights.
This section draws on the cases outlined above in order to identify the kinds of rights that may be emergent, or may be at least asserted, claimed or desired, by various categories of people and organisations. It then examines ways in which such rights may come into existence.
The mini-cases described in the previous section identified in more or less precise form a set of 20 claims or interests that represent candidate rights. They are tabulated in Exhibit 1.
Rights of the Non-Cyborg (or Pre-Cyborg)
Rights of the Prosthete
Rights of the Orthot
Rights of the Supplier and Installer
If new balances are to be established in response to cyborgisation, then political triggers and processes are needed to bring about change. This sub-section considers some possibilities.
In common law jurisdictions, it is feasible for successive judgements by superior courts to accumulate a body of law that establishes new rights. The process is very slow and haphazard, however, and it offends politicians. Given the progress that has already been made with cyborgisation and the rapid rate at which it is developing, it would appear to be far more preferable to achieve change through parliamentary processes.
Ethics and morality seldom have volitional or political force (Clarke 1999). On the other hand, claims for new rights can be usefully analysed from the perspective of applied ethics. An example of a field in which some progress has been made is bio-ethics, which has been active since at least the 1920s. Spurred on by Huxley's anti-utopian novel 'Brave New World', published in 1931, and the adoption of eugenics by the Nazi Party, the perception arose that biological sciences and bio-engineering are meddling with human-ness, and that adjustments are needed to the framework within which relevant political, social and economic institutions operate. There has been significant feed-forward from the bio-ethics arena to law reform agencies and parliaments.
Like biologists, engineers have ethical obligations in relation to the impacts and implications of the new capabilities that they create. The basic tenet proposed in Clarke (1988) was that "all researchers and professionals must regard the implications of their work as part and parcel of their research in and application of IT. Consideration of implications needs to be integrated, not segregated".
Over two decades later, however, the IEEE Code of Ethics (version of 2006) still states merely that "[a member of IEEE commits] to accept responsibility in making decisions consistent with the safety, health and welfare of the public, and to disclose promptly factors that might endanger the public or the environment". This is completely vague about the implications for individuals, and nowhere is even this limited commitment translated into enforceable operational undertakings.
A fledgling robot ethics movement was initiated by Asimov (1942) as the Laws of Robotics, and examined in Clarke (1993) and FIDIS (2009). An IEEE Technical Committee on Roboethics has existed since 2004. But, 70 years after the problem was defined, the movement appears to have generated no concrete outcomes.
Robotics has matured far more slowly than the imaginations of sci-fi authors and academic and commercial salesmen; so perhaps a 70-year delay in that particular endeavour represents no great problem for mankind. Cyborgs, on the other hand, are here and now. Indeed, over 40 years ago, an outline of prosthetisation called 'The Cyborgs Among Us' had already been identified as one of many 'future shocks' (Toffler 1970, pp. 193-199). Despite that, virtually no progress has been made in professional self-regulation, still less in developing a formal regulatory regime. A contribution was located in the medical profession, but in the form of an internal Committee report with no direct impact (CEJA-AMA 2007). Contributions in the engineering profession are merely at the level of discursive articles such as Foster & Jaeger (2007).
How are the questions of cyborg rights identified in this paper to be addressed in the absence of any regulatory framework? Of the most serious concern are involuntary orthosisation (perhaps under the pretence of choice, but without genuine consent) and covert orthosisation. Also of considerable concern are the right to disconnect, unfair discrimination, and the avoidance of unreasonable liability for harm arising from the installation and use of prosthetics and orthotics.
Exhibit 2 outlines, in concrete terms, functions that it is contended IEEE has a moral obligation perform.
The process of cyborgisation harbours great promise, but also significant threats. The scope for inequitable access to potentially beneficial prostheses is enormous, and so is the risk of a backlash against orthoses that are perceived to be 'unnatural' or potentially harmful. Political, social and economic institutions must grapple with the fruits of the labours of the information and communications technologies, and they must be informed by the professional bodies that represent the researchers and engineers. At present, however, those professional bodies are unacceptably inactive.
An earlier version of this paper was presented as an Invited Keynote at the IEEE International Symposium on Technology and Society (ISTAS 2010), 7-9 June 2010, University of Wollongong. Valuable comments were received from the reviewers and the editor.
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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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