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No two things appear as different as the inner space of the human genome and the cyberspace of computers and the Internet. The first is the world of warm, living, breathing organisms; the second is one of cold, hard silicon and copper. Yet the announcement on Feb. 12, 2001, that an international consortium had completed a draft sequence of more than 90 percent of the human genome — and publication of a detailed map of the genes — prompted a glimpse into what might lie beyond cyberlaw. To a surprising and little-noticed degree, these two technologies are bumping into common legal and policy issues, raising the prospect that they might someday be important components in a unified law of technology. The human genome isn’t new, of course. It has been around for several million years, ever since humans evolved from earlier primates. The phrase human genome refers to all the genes sequenced in the DNA molecules that make up the 23 pairs of chromosomes in humans. Until the 20th century, humans didn’t know about DNA, and they didn’t know much about genes. They didn’t even have a decent map until last February. The DNA molecule is the key to life because it replicates itself and makes the proteins that sustain life. It’s based on a quaternary code locked in one of four chemical bases –adenine, cytosine, guanine, and thyrine — represented by the letters A, C, G, and T. In some respects, DNA is not all that different from computer chips and operating systems, although computers use a simpler binary code of ones and zeros. But what biotech and cybertech have in common from a legal standpoint are questions about how to treat their considerable intellectual property and about what to do with their insidious capability to invade personal privacy. UNCHARTED TERRITORY We generally don’t think of DNA as intellectual property, but it most certainly can be. Patents are one kind of intellectual property. The general rule has been that living tissue is not patentable. Yet significant exceptions to the rule have emerged. Patents have been issued that cover DNA codes, such as those for hybrid plants, those for genetic tests and gene therapy, and those where living tissue is used to produce a substance. Therefore, today, the question is how far to go in this direction. No one seriously advocates that we should have to pay for a patent license to live. Rather, the argument is that the researcher who discovers both the function of a DNA code and a way to do something useful with that discovery should indeed be compensated for his “invention.” The Celera Corp. in Rockville, Md. has converted DNA codes into a different kind of intellectual property. It sequenced the human genome — that is, it read the code of our genes — and then compiled the findings into a proprietary computer database to which it sells access. Celera doesn’t claim a patent over these DNA codes. Others are free to sequence the human genome and publish their results. But if you want to use Celera’s intellectual property, you have to pay. Celera is to the human genome what West Publishing and Lexis are to the law, a proprietary database whose individual entries are unprotected. We have more experience in treating the binary codes of computers as intellectual property. Computer chips are patented, and computer software is copyrighted and patented. This type of intellectual property is not quite the equivalent of DNA, but it is similar. In this sense, cybertech companies like Intel, Cisco, and Microsoft are in the same business as Celera. Their profits stem in part from the intellectual property of codes, which they zealously guard. Allowing private ownership of biotech and cybertech information of such fundamental importance has generated parallel ethics debates in both disciplines. The federal government thought that decoding the human genome would be of fundamental benefit to mankind. In 1986, it created and funded the Human Genome Project, now under the auspices of the Department of Energy and the National Institutes of Health, for the sole purpose of discovering the codes and putting them in the public domain for all to use without charge. Yet the government did not prohibit companies in the private sector from undertaking similar efforts and indeed encouraged them to build on the government’s work. Celera went the government one better, devising a new and different approach to sequencing the human genome that shortened the effort by several years. It also incorporated the public-domain data from the government, which sequenced the DNA of only one individual, into Celera’s database and added sequences of five other individuals. This made Celera’s database more valuable to researchers than the government’s. And Celera offered sophisticated software services that further enhanced its database. There was no comparable government project for computer code, although the Defense Department and the National Science Foundation funded the creation and development of the Internet for many years. But there is the “open code” movement, supported by computer specialists, researchers, and academics, that advocates public-domain operating systems, such as Apache and Linux, rather than proprietary systems like Microsoft’s. Although Microsoft’s Windows operating system is far and away the most widely used for desktop and laptop personal computers, the public domain Apache operating system is reputed to be in use on 63 percent of Internet servers compared with only 21 percent for Microsoft. The arguments for and against public domain codes, whether in computers or DNA, are largely the same. On one side are those who believe no one should own or profit from these codes. They say that ownership of the DNA code is like playing God and owning life itself. Likewise, they say that computer systems will become such an omnipotent, Godlike force that those who own the code will control society. And for both types of code, they argue that free access promotes further research and progress. On the other side are those who reject spiritual metaphors and focus on worldly, economic ones. They believe the intellectual property value of these codes is no different from that of, say, a Hollywood movie or Eminem’s lyrics. Moreover, they argue that society is better served by letting the profit motive operate. For example, Celera nimbly moved around the slow government-funded effort with a different approach that shortened the work by several years; and Microsoft’s marketing prowess did much to speed public acceptance both of the personal computer and the Internet. Besides, Celera recently announced a policy to allow legitimate researchers to access its database for noncommercial purposes without charge, thus arguably removing one of the objections to proprietary human genome databases. We are all too familiar with the threats to privacy that the two technologies pose. Although we typically put them into separate legal pigeonholes, the following hypotheticals suggest the relationship between the two. You left the job interview feeling good. The interviewer was attentive, and you handled yourself well. What you didn’t know was that as soon as you walked out, the interviewer vacuumed your chair to pick up the strands of hair and flakes of skin that you shed. He ran DNA tests on the samples and learned that you have a genetic predisposition to carpal tunnel syndrome (that pain in the wrist you’d get from all the keyboarding the law firm expects of new associates) and decided not to offer you the job. But suppose you got the job as an associate in the prestigious firm, put in 14-hour days pounding hard on your computer and surfed the Internet from your office for relaxation in the evenings. Unfortunately, a routine “vacuuming” of employee computers at the firm found cookies on your computer that showed you had visited the Web site for carpal tunnel claimants. The firm thought it best to fire you. Certainly the public worries about how both these technologies can be used to invade individual privacy. Insurers could base their premiums on latent genetic diseases revealed by DNA tests. Employers could use genetic information from DNA tests to discriminate in hiring or to attribute employee injuries to genetic causes. The Washington Postreported April 20, 2001 that Burlington Northern Santa Fe Railroad settled a complaint from the Equal Employment Opportunity Commission by agreeing to “halt genetic tests on blood taken from employees who had filed claims for work-related injuries based on carpal tunnel syndrome.” The Federal Bureau of Investigation developed the Carnivore software (now known by the arguably more benign designation DCS1000) that uses computer codes to scan the e-mail of thousands in order to get evidence on one suspect. Businesses place cookies on the computers of those who visit their Web sites in order to monitor Internet activity and figure out how to sell the visitor more. In short, a good part of who we are is told by the seemingly arcane codes that lurk within our bodies and computers, and yet these codes are all too easy for modern technologies to read. SHORTSIGHTED LEGAL THINKING So far, there seems to be virtually no overlap in legal thinking about cybertech on the one hand and biotech on the other. For example, there are no law review articles comparing the open code movement for the Internet with the open genome approach in the biosciences. Stanford Law Professor Lawrence Lessig’s seminal book, “Code,” is about cyberspace, not genetics, although his thoughts about privacy might apply equally well to both. Congress hasn’t thought about the subject either. It is a criminal offense under Title 18 of the U.S. Code to intercept someone’s e-mail codes, but not to read their DNA without permission. Beyond cyberlaw may lie a whole new field of law designed to “translate,” to use Professor Lessig’s word, legal principles created in a lower-tech age into ones that work for cybertech and biotech. Supreme Court Justice Antonin Scalia’s dissent in the March 21 decision in Ferguson v. City of Charlestonprovides an example of how even constitutional protections might be lost unless judges and lawyers appreciate that the new technologies require fundamental adjustments in legal concepts. In Ferguson, the staff at the public hospital operated by the city of Charleston decided to do something about cocaine use by women receiving prenatal treatment. It adopted a program requiring the women to give urine samples for drug tests. Women who tested positive for drugs were invited to undergo counseling. In certain circumstances, the women’s names and test results might be given to police. As Justice John Paul Stevens’ majority opinion noted, this threat of law enforcement “provided the necessary ‘leverage’ to make the policy effective.” Ten of the arrested women brought suit. The Supreme Court ruled the requirement was an illegal search and seizure under the Fourth Amendment. But Justice Scalia dissented, writing:
There is only one act that could conceivably be regarded as a search of petitioners in the present case: the taking of the urine sample. I suppose the testing of that urine for traces of unlawful drugs could be considered a search of sorts, but the Fourth Amendment protects only against searches of citizens’ “persons, houses, papers, and effects”; and it is entirely unrealistic to regard urine as one of the “effects” (i.e., part of the property) of the person who has passed and abandoned it. [Emphasis in original.]

Justice Scalia’s reading of the Fourth Amendment appears to confine its protections to searches using 18th century technology and seemingly gives the individual little privacy from these new technologies. Does the FBI’s Carnivore software, for instance, “search” persons, houses, papers, or effects? Would it be a “search” if the police invited a suspect to an interview in order to vacuum up the hair and skin he left in the chair? The Associated Press recently reported that police in Largo, Fla., performed DNA tests on samples obtained from a “screen from an electric razor and cigarette butts” found in a man’s garbage and matched his DNA with that of blood found at the scene of a murder. The technologies seem to be evolving faster than legal thinking. In announcing the completion of the draft human genome, the National Institutes of Health distributed a brochure entitled “Genetics, the Future of Medicine.” It may also be the future of cyberlaw. Washington, D.C. lawyer James H. Johnston is also a writer and a frequent contributor to Legal Times. He may be contacted at [email protected].

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