The online version will be released in three parts on April 8, April 28, and May 6.
Stay tuned for more information.
DREAMINÂ’ MAN: the role of idealism and pragmatisms in privacy advocacy
on june 19th, i had the good fortune of being invited to give a dinner speech to all of the speakers at UofA’s annual access and privacy conference, performing at the speed of change. although i fully understood the drill – they wanted a lighthearted and entertaining 20 minute speil – something happened to me on the plane that turned into a jerry mcguire moment. i decided instead to take a more heartfelt look at a difficult and often unaddressed set of issues in privacy advocacy.
many people who attended have urged me to post the speech, which i was
originally reluctant to do both because it was a kind of off-the-cuff
“moment”, and because a better, more rigorous version of it would have
avoided its central problem, which is attaching only a few faces to the
various positions rather than surveying a wide variety of people and
positions. i reiterate here that none of this was ever meant to be
about the people espousing the positions, rather to use famous examples
in order to raise interesting and important questions about the
appropriate roles of idealism and pragmatism.
ontario information and privacy commissioner
ann cavoukian was kind enough to provide me with some very useful
feedback on my ideas in spite of the fact that some of my remarks about
her position were critical and, as i put it in the address, “visceral”.
she is a total mensch.
among many other things, she warned me about the danger of citing the
statistics reported by edward greenspan, which she claims are in “wild
dispute” and, in some cases, “unequivocally incorrect”. ann also
rightly pointed out that my general argument about the politics
inherent in some technologies cuts both ways and will therefore work
against idealist approaches in many circumstances as well. she also
suggested that “privacy by design” can be used in some cases to
re-design the politics of technological systems.
i decided not to alter the original text and am trying to decide
whether my jerry mcguire moment ought to be transformed into an
academic study. let me know what you think !!
if you would like to read the original text, it is here
for those interested in listening to the speech, you can find it here
Searching for the right balance
We can reasonably be suspicious of sliding standards for subjecting Canadian citizens to searches by sniffer dogs -- or the next detection technology
While the Supreme Court put some restrictions on searches last week, it left the door open for the electronic 'noses' of the future, which can operate much more conspicuously and effectively than snoop dogs, writes Ian Kerr.
Last Friday, the Supreme Court of Canada released two important privacy-related decisions, both addressing an increasing trend in which Canadian law enforcement agencies use police dogs to conduct random searches of public spaces.
The first case took place at the Calgary bus terminal, where law enforcement officers had initiated a dog patrol. After getting off a 15-hour, all-nighter Greyhound trip from Vancouver, Gurmakh Kang-Brown was said to have aroused suspicion because of an "elongated stare" that he gave to an undercover officer who had been following him around the station. After the perceived staring incident and some to-ing and fro-ing within the bus station, a brief discussion ensued and ultimately a pooch named "Chevy" was brought over for a quick snoop. Chevy hadn't come to the bus terminal in anticipation of Mr. Kang-Brown's arrival; he wasn't a known suspect, nor was anyone else in the terminal. Chevy was there as part of a formal program to snoop-out anyone whom her handlers thought looked a certain way.
The second case involved an unknown teenager who wasn't even on the scene when the police opened his knapsack in the gym at St. Pat's High in Sarnia. His knapsack was left there, unattended, because the entire school had been locked-down to facilitate the police and a trusty K9 named "Chief." After sweeping the hallways and lockers, Chief and his handlers headed to the gym where he snooped the kid's bag, immediately indicating the presence of an odour of narcotics.
The officers had not been tailing the teen, known as A.M., as a "person of interest." They simply took up a standing invitation from the school's principal one year prior to search the school any time they wished, without warning or cause, in support of the school's zero-tolerance policy against drugs.
"In the sniffer dog business," opined Supreme Court Justice Ian Binnie, "there are many variables."
he who would learn to fly one day must first learn to stand and walk and run and climb and dance; one cannot fly into flying.
- nietzsche
in a few minutes, it will be midnight. I am sitting on the balcony of my rented san juan apartment. I just finished reading the IAAF report thwarting the olympic ambitions of oscar pistorius, the south african sprinter whose spirit has captured the imagination of the 24 students I am here to teach.
we started our three-week exchange seven days ago in ottawa, where 12 of my university of ottawa law students hosted 12 students from universidad de puerto rico. together, these two dozen outstanding students are enrolled in a course that I call "building better humans?" (please note the question mark in the title.)
one of the goals of this interdisciplinary course is to illuminate the murky line between therapy and enhancement in a world that seems to be drifting from "natural selection" toward what bioethicist john harris calls "deliberate selection."
what happens to people when science and technology are aggressively used to alter the human condition? what does the future hold for health and humanity as we move from Darwinian evolution to self-directed enhancement medicine?
in this three-week course, we are tackling such questions and thinking about whether or how to regulate emerging health enhancements in light of an evolution that operates at an exponential rather than a glacial pace.
mr. pistorius was previously unknown to most of my students.
but he is now poised to become a household name before the olympic torch lights the stage in beijing.
when oscar was born without fibulas 21 years ago, his parents had to make a difficult decision shortly before his first birthday: should they conform to societal norms by way of a medical intervention that would amputate both of his legs at the knee so that he could be fitted for prosthetic limbs? Or should they leave him with the legs he was born with, thus affirming his vari-ability? without knowing that bionics would, within a mere 20 years, transform from science fiction to science "fact," and without knowing that their son would become known as "the fastest man on no legs," they chose the route of medical intervention.
two decades later, and right around the time that the sports world began watching mr. pistorius close in on olympic qualifying times, the IAAF (international association of athletics federations) released rule 144.2, which prohibits the use of "any technical device that incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device." the rule was meant to ensure that the olympics remain "pure" -- that the competition remained between athletes and not between sports equipment manufacturers.
not long after the promulgation of 144.2, mr. pistorius sought confirmation that his carbon fibre prosthetics -- without which he could not compete -- did not run afoul of the rule. on monday, three days after I studied the issue with my students, the IAAF released its decision: mr. pistorius is now the fastest man on two springs.
the IAAF decision was based on an "independent scientific study," a biomechanical and physiological analysis of long sprint running comparing mr. pistorius with five two-legged athletes capable of similar levels of performance. among other things, the so-called "objective results" of this study revealed the following:
(1) "Pistorius was able to run with his prosthetic blades at the same speed as the able-bodied sprinters with about 25 per cent less energy expenditure";
(2) "the ... returned energy from the prosthetic blade is close to three times higher than with the human ankle joint in maximum sprinting"; and
(3) "the mechanical advantage of the blade in relation to the healthy ankle joint of a two-legged athlete is higher than 30 per cent."
on this basis, the IAAF concluded that mr. pistorius's prosthetic legs must be "considered as technical aids in clear contravention of IAAF Rule 144.2."
while it is tempting to jump on the bandwagon along with the many critics who rightly censure the IAAF for its inconsistent approach to what my colleague gregor wolbring has called "technological doping" (for example, pumping oxygen into your blood is prohibited but huffing and puffing in a little tent overnight till you achieve the same effect is not), there is something else that I find extremely curious about the decision.
rule 144.2 seeks to prevent athletes from using technology to gain relational advantages over one another. but as one of my students, ashley, astutely noted in class last week, the outcome of the analysis depends entirely upon which "other athletes" are chosen as the appropriate comparators. applying principles of equality law rather than biomechanics, ashley unpacked a key assumption within the study. although lauded as "objective" and "scientific," the study clearly privileges a certain body type.
those who work in the field of (dis)ability studies are all too familiar with this approach. the medical model upon which it is based imposes biological "norms" as the baseline for any, and all, analysis. through the narrow lens of biomechanics and from the exclusive perspective of two-legged runners, oscar pistorius's "cheetahs" are seen to confer a physiological advantage.
but even gert-peter brueggemann (the scientist who conducted the study) noted last week in an interview with the new york times that his scientific observations did not necessarily translate to a finding of general advantage.
mr. brueggemann, like every other scientist, is well aware that the outcome of every experiment depends entirely on the determination of its control groups. as a young einstein realized in his daydreams during his day job in the patent office, in science, assumptions about one's point of reference are key.
so what would happen if the IAAF had used a different point of reference in the study? instead of presuming two-leggedness as the baseline and then determining whether mr. pistorius deviated significantly from that norm, what if the interpretation of rule 144.2 adopted a relational approach that also took into account the many disadvantages experienced by mr. pistorius (biomechanical and social)?
I suspect that such an approach would not have yielded a result so clear-cut.
while it is important to be fair to the species-normative biological athletes against whom mr. pistorius hopes to compete, it is equally important to be fair to the bionic runners who wish to be able to become olympians, not paralympians. able, not in terms of being fast enough, but in terms of gaining access to the competition.
sports, like the practice of medicine, stands at a crossroad. in each case, it is no longer clear whether to favour natural ability or ultimate performance. as we continue to technologize sports (for that matter, as science continues to seek technological mastery of the body), the deepening merger between human and machine will only make these questions more difficult. as gregor wolbring has asked, once biological runners get "lapped" by their bionic counterparts, will the paralympics become the olympics and vice-versa?
and what does all of this mean for people?
MINDING THE MACHINES
amid all the hype about south korea's proposed robot charter, let's not
forget the more important question of whether robots should assume
human roles in the first place
a few months ago, as part of its bid to put a robot in every household
by 2020, the south korean ministry of commerce, industry and energy
announced its intention "to draw up an ethical guideline for the
producers and users of robots as well as the robots themselves ..."
responsible computer programming,
corporate accountability and consumer protection in the electronics
sector -- these are all good things.
pause. rewind. replay.
what? an ethical guideline for the robots themselves?
anticipating an event horizon -- only one bar mitzvah away -- in which
intelligent service robots become a part of daily life, the south
korean call for a "robot ethics charter" smacks of the science fiction
of isaac asimov.
when thinking through the south
korean agenda, asimov is definitely worth considering. intentionally or
not, his fiction charted a path that has inspired the actual
development and implementation of artificial intelligence (AI). asimov
was totally underwhelmed by mary shelly's frankenstein and the "dull,
hundred-times-told tale" about humanly created, intelligent monsters
that will rise up to destroy us. so he constructed a new narrative
where robots "were machines designed by engineers, not pseudo-men
created by blasphemers."
south korea certainly seems to be
taking its cue from asimov's writings, imagining friendly, intelligent
robots that are dedicated to helping people. asimov's famous robbie,
for example, was a nursemaid tasked with caring for a child who loved
the robot like a best friend. asimov went to great pains in his
storytelling to normalize robots -- to undo a technophobia he dubbed
the "frankenstein complex."
to further ensure that humanity would
remain undaunted, the prolific asimov articulated the three laws of
robotics that he subsequently described as his most enduring literary
contribution. expressed in 61 words and examined in thousands of
stories and letters over a period of more than 40 years, asimov
imagined what would happen if we were able to embed core morality into
machine code and by doing so ensure that "it would never even enter
into a robot's mind" to intentionally break the following precepts:
- a robot may not injure a human being, or, through inaction, allow a human being to come to harm.
- a robot must obey orders given it by human beings, except when such orders would conflict with the first law.
- a robot must protect its own existence as long as such protection does not conflict with the first or second law.
leaving aside the thorny philosophical question of whether an AI could
ever become a moral agent, it should be relatively obvious from their
articulation that asimov's laws are not ethical or legal guidelines for
robots but rather about them. the laws are meant to constrain the
people who build robots of exponentially increasing intelligence so
that the machines remain destined to lives of friendly servitude. the
pecking order is clear: robots serve people.
and to the extent that it even
contemplates a code "for robots themselves," the korean robot ethics
charter is almost certain to follow suit.
it is interesting to ponder asimov's
laws in the context of technological development in south korea and
elsewhere. for example, could samsung's intelligent surveillance &
security guard robot be programmed to correctly resolve the tension
between asimov's first and second laws without abandoning its
fundamental purpose? funded by the south korean government to overcome
the limitations of human soldiers guarding its borders to the north,
samsung's machine-gun sentry robots (check 'em out -- they're on
YouTube) use precision automation technologies to discriminate friendly
from enemy activity and guarantee high shooting accuracy without the
need for human presence. what will the SK robot ethics charter say
about these?
when I began my academic career a
decade ago, the uniform law Conference of canada commissioned me to
conduct a study on the far less ominous but related question of how to
deal with computers that purport to negotiate and enter into contracts
completely independent from human review or interaction. without a law
resolving this novelty, there was concern that the future of e-commerce
was uncertain. in the years since, as canada research chair in ethics,
law and technology at the university of ottawa, i have been gearing up
for a book project tentatively titled: minding the machine -- a dual
investigation involving: (i) the AI project of putting minds into
machines; (ii) the corollary ethical and legal project of designing
appropriate prohibitions and oversight mechanisms to mind those
machines.
until the silicon hits the sidewalk,
i remain doubtful whether south korea's robot ethics charter will match
the media hype that it has received. (one author went so far as to
style it a "hippocratic oath for androids.")
my skepticism about all of this lies
mainly in the subtext. talk about burying the lede! in my view, the
south korean agenda has little to do with machine intelligence or
roboethics proper. once you sniff your way through the subterfuge of
south korea's jetson-esque utopia, you will see that there are two very
traditional drivers underlying all of this.
the first driver is financial. for
better or worse, the south korean government has identified robotics as
a key economic strategy in the coming decades. the BBC and the new york
times report that millions of research dollars are being pumped into
robotics in south korea. recognizing market saturation for industrial
and military robotics, the strategy is to create a global market that
does not currently exist -- a market for domestic service robots. south
korea is hoping that if they build it, we will come.
the second driver is social. with the
lowest birthrate in the world, it is predicted that south korea will
face significant workforce shortages in the coming years.
the current strategy for making up
the shortfall includes developing service "bots" such as asimov's
robbie that can perform a range of domestic chores, and become
companions and caregivers for the young and old.
in any case, if you find the idea of
using service robots to solve domestic labour issues somewhat exotic,
it should be remembered that such proposals have longstanding
precedents in north america. a nice example was offered me by a
brilliant cyberfeminist colleague in the following corporate slogan
from the 1920s: "clothes washing is a task for a machine, not for your
wife. turn the hard work into play. buy her a bluebird."
in light of this slogan, it is
intriguing to note the first of two central reasons offered to the
media for creating the robot ethics charter by one of its drafters.
recognizing the concerns that accompany the substitution of robots for
people as caregivers and companions, the drafter ponders, "imagine if
some people treat androids as if the machines were their wives."
before we spend valuable resources
commissioning working groups to invent "no-flirt" rules or other
robotic laws to avoid inappropriate human-machine bonding, isn't there
a logically prior line of questioning about whether a declining
birthrate is truly a problem and, in any event, whether intelligent
service robots are the right response?
a headline in the korea times a little over a year ago proclaimed a more intuitive approach: "gender equality essential to addressing low birthrate."
it is no coincidence that the word robot itself derives from robota --
a czech word that connotes involuntary servitude. aristotle was perhaps
first to recognize the politics of automation, speculating that "[i]f
every instrument could accomplish its own work, obeying or anticipating
the will of others, chief workmen would not want servants, nor masters
slaves."
was he right? could robots be a
technology of emancipation? or does automation just as easily reinforce
existing gender stereotypes and an unjust status quo?
the answer to these questions surely
depends on how those robots are designed and used. not just the way
they are programmed but, more broadly, the social roles and values that
we ascribe to them.
despite my luddite sensibilities, i
have always remained a reluctant optimist about the potential of
ethically inspired automation technologies, AI and collective
intelligence. i am an adamant believer in the general project of
roboethics and ethical software design, and i commend much of the
excellent research in these fields by groups like the singularity
institute for AI and the european robotics research network.
at the same time, i am concerned
about robotic laws, charters and other sleight-of-hand that have the
potential to misdirect us from the actual domains of ethics and social
justice. let us hope that i am mistaken in what i described as the true
drivers of the south korean robotics agenda and that its robot ethics
charter will exceed its pre-release hype. only time will tell.
it was a
fun event, packed with many of cyberlaw’s rockstars.
i was on
the last panel of day two, looking at ‘the future of intermediaries’ along with
a great line-up that included ann bartow, rob heverly, dan hunter and david
post.
for me,
the most inspiring of the talks during the two day event was the one given by
ann. she took the question posed in the conference title seriously, choosing to
remove the bracketed-h and explaining why gender equality requires us to wither the ‘man’ in the middle.the publication deriving from this talk is
available here,
and i highly recommend it as an important diagnostic and prescription for the
way we use (and don’t use) the web.
in her
talk, ann provided some possible explanations for why there is not very much
legal scholarship devoted to gender issues on the internet and suggested that
there is a powerful need for cyberprofs and activists to pay substantially more
attention to the gender-based differences in communicative style and substance
that have been imported from real space to cyberspace.
ann also shared
a number of examples of gender discrimination online and off, including
experiences of her own upon her arrival to usc, including her first meeting
with a senior male colleague who greeted her with a question: ‘why should the faculty have hired a woman
instead of a man to teach ip?’
she told
us that it has since gotten a bit easier, that over time she was able to ‘flip’
this guy (i.e., he came to recognize her contribution to the faculty
and her field and he eased-up a little once she was able to ‘prove herself’).
during
the discussion period on our panel – when asked what could be done about all
this – ann replied by saying it-would-be-a-great-start
if male colleagues would simply add a gender component within the fields of
research that they are already conducting.
i
remember dan hunter and others promising that they would. i made a similar
promise to myself. while it has taken a lot longer than i had hoped to ramp up
my research and although it is still very early in my project, i am happy to
finally report to ann and the others in attendance that i have met the
challenge.
in
furtherance of my own recent work on the relationship between ‘identifiers’ and
‘identity’ (part of my idtrail project), last
wednesday, i gave a presentation at uOttawa’s shirley
greenberg feminist lunch time workshop series titled “new identifiers for victims of
abuse”.
unfortunately,
my talk was more of a description of the project than a finished research
product.
if you
are interested, the podcast is available here and the powerpoint
deck is here.
this post
is really just to offer my sincere thanks to ann for ‘flipping’ me, and also to
challenge dan hunter, greg latowska, and other men who promised they would meet
ann’s challenge — as well as all of the other men on this list who didn’t know
about ann’s challenge — to flip-it-forward!
INSPIRED BY GAUDI
many
people have written to tell me that they recognize the presence of elements of
gaudi’s park guell as one of
the motifs that runs through my site and some have asked why.
in addition
to the fact that it is one of my favorite places and a reminder of one of the
best years of my life, the main reason is because gaudi inspires me.
taking
cues from nature, gaudi’s work is perhaps unsurpassed in its seamless
combination of beauty and function. every single scrap of trencadis is a disassembled assembly of
meaning, purpose and aesthetic.
the
undulating benches on the banner by my website (etched into my memory thanks to
the stunning photography of my wife erin)
twist-n-shout around the perimeter of the esplanade. the public square is
a rather grand space about 160 feet by 120 feet and a great place to digest a
sandwich and watch an impromptu soccer match or yoga session . half of it
is supported by solid ground, the other half is supported on the doric columns
of the hypostyle chamber below. some say that these vibrant and colorful
benches take the form of a snake basking in the mediterranean sun, but the greek theater, as the area it
circumscribes is sometimes called, is also designed so that people can sit
around in groups and kibitz.
another
reason for choosing this setting as the backdrop for this site are the two
delicious ironies of park guell.
first,
although it bears the english name for a “public space,” which it certainly is
now, this “park” was in fact commissioned by a rich industrialist named
guell, with the vision of building a walled-off neighborhood (not unlike the
gated communities popping up left and right across north america).
gaudí's original plan was supposed to include 60 private houses in an exclusive
garden setting but only two were built: one of which now houses a small Gaudí
museum. ironically, this private space was subsequently purchased by the city
of Barcelona
and can be enjoyed by the public. [a metaphor for the future of DRM?!]
outside
the small museum, a plaque indicates that gaudí lived there for the last 20
years of his life but this wasn’t really so. in fact, he spent the last 10
years of his life camped out at lasagrada familia,
conceptualizing the mosaic spires for what already is and will upon completion
surely be one of the world’s most amazing structures (it is still being built
and is not likely to be completed for another 20 years)
la
sagrada familia
had by this time become gaudi’s single-minded obsession. so possessed by its
every detail was he that gaudi allowed his personal lifestyle to suffer extreme
neglect. his clothing, it is said, was in the end held together only by pins.
he continued his fund rasing efforts by panhandling in the streets. by
this time he considered himself one among the poor. he no longer sought
exclusivity or fortune.
though he
was celebrated for several decades as Catalunia’s most renowned architect, not
a single person recognized him in 1926 when, at the age of 74, he was run over
by a tram and died three days later. the second bit of irony here is that gaudi
made the mistake of supporting guell’s bid to ensure the exclusivity of park guell by making sure that the
public tram did not come anywhere near the park. it is said that after
years of trying to keep it away, the tram struck back. [thus proving that the
answer to "the answer to the machine" is *also* in the machine]
if you visit barcelona, another story
that you will hear the locals tell is about a well known interaction that gaudi
had with one of the bishops of the church who, after seeing gaudi obsess in
painful detail about execution in the designs of one of his spires, asked him:
“why do you lavish so
much care on the top part of these spires, which, tens of stories above the
tallest structures no one will ever be able to see from up close?”
in answering this, i am instantly
reminded of a lovely passage belonging to nietzsche (para 93 of the gay science):
"But then why do
you write?" A: I am not one of those who
think with a quill in hand, much less one of those who abandon themselves to
their passions right before the open inkwell, sitting on their chair and staring
at the paper. I am annoyed and ashamed by all writing; to me writing is nature's
call -- to speak of it even in simile is repugnant to me. B: But why, then, do
you write? A: Well, my friend, I say this in confidence: until now I have found
no other means of getting rid of my thoughts. --B: And why do you want to get
rid of them? --A: Why do I want to? Do I want to? I have to. --B: Enough!
Enough!
in what could almost be described as an existential crisis, i have been asking myself
why/whether to host a personal website for exactly the same amount of time that i have been sitting on iankerr.ca. i registered the site
right around the first bong of the new millennium; it has taken me
six years to execute. when i bought the domain, i had no clue why or what i
would use it for. i confess that i mostly did it so that no one else would
cybersquat. (i already lost the dot-com to that pesky photographer). it comes as no surprise, then, that my plans for a full blown
website moved slowly and went through several iterations. remember back in 2000
how big-a-deal flash was? one of
my former students, ryan singh, made me a totally wicked flash-based site with
looping iankerr drum fills and lots of pizzazz. it was great to look at (though,
as we learned about flash animation in general, not over and over and over
again!). but the site had no point.
inspired by my friend michael geist (who basically said: "just do it.
its purpose will emerge."), i eventually clarified my position on a
number of items:
overpopulation. to carry on from nietzsche, there is
already too much warm excrement populating cyberspace. if i was to further
proliferate, i had to promise myself that i would not radiate more heat than
light!
audience. am i writing for me or other? even
if you get past the idea that people might actually want to read your work –
would they *really* want to
tune-in to read *my* work on a
regular basis? i settled on an answer that worked for me. i would
build my site with the aim of further engaging my students and for people
already interested in my academic research outputs. up till recently, i have
been using yahoo! groups and my university website, both of which suck big
time! with my own website, i knew i could get rid of all the cheesy advertising, the clunky look and
feel, and could promise my visitors a privacy policy that actually worked in
their favour. my site could do a better job delivering-up my immediate goals:
teaching pedagogy and access to knowledge. although i hope to say meaningful
stuff from time to time on topics about which i have some expertise or
experience or to express things on my mind, i will generally leave it to my pals
in the US legal academy to play the
pundits.
tone. my
teaching style is informal but my writing style is (usually) formal. which
should it be for the website? given my immediate goals, i am opting for an
informal tone.
regularity vs insight. too many of the posts that i see
online these days read like they are there to fulfill some daily quota. i have
decided to post only when i have something meaningful to say. sure, it risks
inattention but i am not doing this to seek attention. (hmm, really?!)
enough pontificating. its time to get out there and rock, and roll the bones. so welcome to my site. i
hope it serves its purposes.
Canada Research Chair in 
telephone:
fax:
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