What do you think? Is the internet a wide open place that should be free from authority and surveillance? Or must there be an update of police powers to keep up with the evolution of crime and criminals in an Internet age? What about the proposed law …do Canadians need to give the police powers that are better tuned to the electronic realities of today? Or, should Canadians be more vigilant than ever about protecting their privacy in a time when it can be compromised with the click of a mouse?

Our question today: “Does the proposed law to allow police easier identification of Internet users go too far?”

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This chapter was written in collaboration with one of my favourite readers and writers, Jennifer Barrigar.  Together, we consider the complex interrelationship between privacy, identity and anonymity in an increasingly networked society through an exploration of the evolution of network technologies and its consequent shifts in social and technological architectures.   The rise of ubiquitous computing from CCTV cameras and handheld devices to digital rights management systems (DRM) and radio frequency identification (RFID) tags has precipitated a shift in the network architecture from one in which anonymity was the default to one in which nearly every online transaction is subject to monitoring and the possibility of identity authentication. We argue that this invariably affects the relationship between privacy, identity and anonymity.

Going forward, we suggest that individual experience will become increasingly characterized and shaped by ubiquitous computing, social networks, information intermediaries, actuarial justice and social sorting.  By briefly examining privacy, identity and anonymity in three distinct parts as well as offering a case study on anonymity in a networked society, we try to demonstrate that the creation of appropriate regulatory protections will depend on the preservation of commitments to fundamental underlying rights such as freedom of speech, autonomy, equality, and security of the person.  We also briefly examine the extent to which an individual’s ability to manage one’s privacy, including the power to identify oneself or to speak anonymously, is inherently linked to the concept of surveillance.  We conclude that, just as our desire for privacy may in some cases necessitate surveillance, so too does the ever-expanding database of personal information require that some of our performances can be separated from that person of record.

This past May, I had the great privilege of being invited to lecture at NYU’s Steinhardt Department of Media, Culture, and Communication as a LeBoff Distinguished Visiting Scholar. While there, I taught an interdisciplinary seminar called ‘Building Better Humans’ which focused on the legal and ethical implications of new and emerging technologies in the context of what I call the ‘human-machine merger’. This presentation addresses some of the core concepts discussed during our time together.

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After several decades of rapid technological innovation we have reached a point at which it is possible to transcend traditional biological limitations through the implantation of microchips, digital body parts and artificial organs. Devices such as fully integrated cochlear implants, retinal inserts and various neural and bionic prosthetics promise to transform the sensory and motor abilities of those who adopt them, ostensibly giving patients greater ‘Security, Adaptability, [and] Freedom’ (Ossur).

However, surprisingly little thought has been given to the ethical and legal aspects of their design and use. Using the cochlear implant as a case study, I elaborate upon some of the key cultural, legal, and ethical issues that are all too often eclipsed by the glamour of scientific innovation. Echoing criticisms voiced by scholars such as Neil Postman, Langdon Winner and Mara Mills, I argue that artificial organs are more than exciting, flashy gadgets that correct unwanted defects. In the context of broader society they become socio-technical-political-artefacts. For instance, to members of the deaf community who do not consider themselves as having any defect in need of correcting, the cochlear implant raises a potential threat of ‘cultural genocide’, among other concerns.

I also examine current ethical and regulatory approaches that govern medical devices and argue that the existing paradigm of mass-market consumer goods is not particularly well suited for the domain of implantable devices. My primary concern here is that individuals will increasingly be roped into a complex set of legal obligations that diminish individual autonomy over the use of their body parts as well as shifting the focus of healthcare from that of patient care to business profit.

Drawing on lessons learned in the field of information technology law, I conclude that special considerations are required in the healthcare context to ensure that patient autonomy and privacy are adequately protected in an era where our bodies are becoming inextricably tethered by devices and software owned by health care providers.

This chapter examines the path of law after the computational turn. In framing my argument, I use Oliver Wendell Holmes Jr.’s famous “bad man” theory as a heuristic device for evaluating predictive technologies currently embraced by public and private sector entities worldwide. Perhaps America’s most famous jurist, Holmes was so fascinated by the power of predictions and the predictive stance that he made prediction the centerpiece of his own prophecies regarding the future of legal education. Holmes believed that predictions should be understood with reference to the standpoint of everyday people, made from their point of view and operationalized with their sense of purpose in mind.

In this chapter, I argue that Holmes’ vision is rapidly giving way to a very different model: machines making predictions about individuals for the benefit of institutions. This trend in today’s predictive technologies, I suggest, threatens due process by enabling a dangerous new philosophy of pre-emption. My primary concern is that the perception of increased efficiency and reliability in the use of predictive technologies might be seen as justification for a fundamental jurisprudential shift from our current ex post facto systems of penalties and punishments to ex ante preventative measures. Such a shift, I argue, would fundamentally alter the path of law by undermining the core presumptions and procedures built into the fabric of today’s retributive model of social justice, many of which would be pre-empted by tomorrow’s “actuarial justice”. Given the foundational role that due process values play in our legal system, I raise the question of whether law ought to set reasonable limits on the types of presumptions and predictions that institutions are permitted to make about people without their involvement or participation. While reliability, efficiency, and the bottom line will continue to be important social goals, I am concerned that to limit the discussion to issues of system design is to ignore the insight underlying the presumption of innocence and associated due process values—namely, that there is wisdom in setting boundaries around the kinds of assumptions that can and cannot be made about people.

This chapter does not offer concrete solutions; rather, it is written in the hopes of inspiring further research in the area of important threshold issues about the broader permissibility of prediction, pre-emption and presumption in the face of the computational turn.

Don’t EVER call him Jim.

James likes any kind of wood, and has been known to hug trees and caress handmade furniture. He and his two brothers have together planted 2.5 million trees across Canada – but he knows that this won’t help.

For Ian, Hilary does everything from editing to grant writing to footnote writing and, of course, research on topics from disability to sensor networks to constitutional protections of privacy.

Her own research interests include ethical issues surrounding death (cadaveric organ donation and assisted suicide in particular) and citizenship issues (multiple nationality and citizenship revocation in particular).

Prior to law, Byron started off with an engineering degree. His greatest job ever, was his position traveling the US playing with $100K robots and lasers – every 10-year old’s dream.