TERRA INCOGNITA
Privacy Horizons

29^th International Conference of Data Protection and Privacy Commissioners

Plenary "Law Meets Technology" Dragon
Nanotechnology and Privacy (French Plenary)

September 26
11h15 - 12h15

Terra Incognita, workbook series # 2

Table of contents

Biographies

• M^e Jacques Saint-Laurent — Chair
• Mr. Alex Türk
• Mr. Hervé Fischer
• Dr. Joel R. Reidenberg
• Dr. Bernard Sinclair-Desgagné

Invisible Surveillance

Nanotechnology and the United States National Plan for Research and Development In Support of Critical Infrastructure Protection

Biographies

Chair

M^e Jacques Saint-Laurent In October 2004, the Quebec National Assembly unanimously appointed Jacques Saint‑Laurent for a five-year term as member and Chair of the Quebec Commission d’accès à l’information. As Chair, Mr. Saint-Laurent is responsible for the oversight and management of the Commission, which is charged with the protection of personal data in the public and private sectors and with ensuring access to documents held by public agencies. As an administrative judge, Mr. Saint‑Laurent has rendered a range of decisions on requests for the review and examination of disputes that fall under the Commission’s jurisdiction. He has also chaired many Commission sessions, providing expert advice on access and privacy. Since September 2006, Mr. Saint‑Laurent has been a member of the working group responsible for establishing the Association des autorités francophones de la protection des données personnelles, an association of Francophone data protection authorities.  Mr. Saint-Laurent was called to the Quebec bar in 1976. Following five years in private practice, he held various positions including Director of the Bureaux de révision paritaires at the Commission de la santé et de la sécurité du travail and Director of Legal Affairs at the Ministère de la Sécurité publique and then at the Ministère des Ressources naturelles. From 1995 to 2001 he oversaw the 25 prosecutors at the Ministère de la Justice in Quebec City. He was Assistant Deputy Minister and Registrar of Civil Status from 2001 to 2004.

Speakers

Mr. Alex Türk Alex Türk was elected as President of the Commission nationale de l’informatique et des libertés (CNIL) on February 3, 2004. He was initially appointed as member of the CNIL in 1992. He was the CNIL Vice-President from 2002 to 2004. In his capacity as CNIL member, Alex Türk was elected Chairman of the Schengen Joint Supervisory Authority (1995-1997), Chairman of the Europol JSA (2000-2002) and of the Supervisory Authority of Eurodac (2003). He has been vice-President of the Article 29 Working Party since February 2007. Alex Türk was elected as a member of the French Senate on September 24, 1992. He was reelected in September 2001. He belongs to the Law Commission and to the EU Delegation of the Senate. He was elected as a Counselor of the Lille-centre County Council in 2001. Alex Türk, Ph.D., teaches public law at Lille II University. He is a lecturer at the Institute of Lille Political Science Institute and Catholic University.

Mr. Hervé Fischer Hervé Fischer is a professor at the Faculty of Arts of the Université de Québec à Montréal where he established the International Digital Observatory (Observatoire international du numérique, www.oinm.org). A dual Canadian/French citizen, Mr. Fischer is a former student of the Ecole normale supérieure de la rue d’Ulm, was senior lecturer in sociology at the Sorbonne-Paris V, holder of the Daniel Langlois Chair in digital technology and fine arts at Concordia University in Montréal (2000), and responsable for establishing the Quebec media lab, Hexagram. He has published a dozen books in France, Canada and Latin America, among them: CyberProméthée, l’instinct de pouvoir, vlb éditeur, 2003; Les défis du cybermonde (direction), PUL, 2003; La planète hyper, de la pensée linéaire à la pensée en arabesque, vlb éditeur, 2004; Le déclin de l'empire hollywoodien, vlb éditeur, 2004; Nous serons des dieux, vlb éditeur, 2006; La société sur le divan. Éléments de mythanalyse, vlb éditeur, 2007.

Dr. Joel R. Reidenberg Joel R. Reidenberg is Professor of Law and a past Director of the Graduate Program in Law at Fordham University School of Law . He teaches law courses in information privacy and technology, intellectual property and international trade. Reidenberg has held appointments at the Université de Paris (Panthéon-Sorbonne and René Descartes) and at AT&T Laboratories - Public Policy Research. Reidenberg is an expert on information technology law and policy. He is co-author of leading books and monographs on international data privacy issues and Internet regulation. He has testified before the U.S. Congress on data privacy issues, consulted to both the Federal Trade Commission and the European Commission on privacy issues, Prior to coming to Fordham, Reidenberg practiced law in Washington, DC and was a member of several Office of Technology Assessment panels. He holds an A.B. degree from Dartmouth College, a J.D. from Columbia University, and a D.E.A. droit international économique and a Ph.D in law from the Université de Paris. He is admitted to the Bars of New York and the District of Columbia.

Dr. Bernard Sinclair-Desgagné Bernard Sinclair-Desgagné is currently the International Economics and Governance Professor at HEC Montréal and “Électricité de France” Sustainable Development Co-chair at the École Polytechnique in Paris. He holds a Ph.D. in managerial economics from Yale University and taught first at INSEAD and then at the École polytechnique de Montréal before joining HEC Montréal in 2001. His main fields of research and expertise are the economic analysis of organizations, environmental economics and technological risk management, and he has published articles on these subjects in major scientific journals such as Econometrica and Management Science. Dr. Sinclair-Desgagné has also worked as a consultant with a number of government agencies. In 2004 he was elected Fellow of the European Economic Association in recognition of his scientific work. In December 2006 he received the “Finance and Sustainability” European Research Award for his article “On Precautionary Policies,” which gives a practical view of precautionary policies.

TERRA INCOGNITA
Privacy Horizons

29^th International Conference of Data Protection and Privacy Commissioners

Invisible Surveillance
by: Hervé Fischer

Document commandé par le Commissariat à la protection de la vie privée du Canada. Les opinions et vues contenues dans ce document n’engagent que leur auteur et ne reflètent pas nécessairement les vues et positions du Commissariat à la protection de la vie privée du Canada ni ceux du Gouvernement du Canada.

Paper commissioned by the Office of the Privacy Commissioner of Canada. The views and opinions contained in this document are those of the author and do not necessarily reflect the views and opinions of the Office of the Privacy Commissioner of Canada nor of the Government of Canada.

Personal monitoring by society and its public institutions was traditionally visible and signalled by physical objects such as barriers, wickets, border crossing points, tollbooths, cash collection points, signage, alarms, checkpoints, or by employees like police officers, investigators, and ticket takers.  The tools were also visible and familiar: ID cards, passports, tickets, badges, licence plates and numbers, uniforms, caps, arm bands, permits, licences, etc. Only control over people’s consciences or souls remained invisible, like the spirits and the gods who watched over them. This whole set of visible procedures is currently being replaced and complemented exponentially by increasingly powerful digital technologies that are becoming more worrisome as they become less visible.

The Digital Panopticon

We owe the “panoptic principle” to English utilitarian philosopher Jeremy Bentham (1748 – 1832) – the word is from the Greek, meaning: all-seeing. He applied it to his concept of a model prison, which he invented in 1791, whose circular building made it possible for a single guard, located in the centre, to visually scan in a single circular gaze, all of the cells, which would have to remain lighted¹. Because the guard himself is in the dark, and the prisoners cannot see him, he can maintain virtually constant surveillance at a distance, even when he is inactive.

The obvious advantage of the device from the surveillance standpoint, in addition to its architectural and bureaucratic rationality, is that it led the prisoners to fear being seen, and hence to refrain from any prohibited behaviour, even if the guard was not there, because the surveillance had become invisible and thus virtually constant. Today, however, this concept, which was based on good intentions – economizing on public funds – is being extensively and effectively used widely thanks to digital technologies. There is nevertheless one major difference, and that is the nefarious effects that result from its increasingly indiscriminate use for all citizens, as if we were all presumed guilty. That is why I have called it the “digital Panopticon”².

I – The Fundamental Parameters of Invisible Surveillance

Before considering the social uses of miniaturized digital technologies, along with their performance, benefits and risk with respect to privacy, we will attempt to highlight specific concerns:

We will highlight their miniaturization, technological convergence, invisibility, remote operation, widespread use, real-time speed and effectiveness (recording and access), the traceability and compilation of personal data they now make possible, the persistence of these data, their use by search engines and data linking.

Miniaturization

Among this wide variety of technologies, microchips, RFID or Radio Frequency Identification devices, which are the size of a grain of rice, or even the head of a pin, are becoming smaller and smaller and thus easier to conceal. They contain a microscopic electronic circuit. They can even be implanted on the human body (subcutaneous injection).  From the early days of James Bond special effects, the world of miniaturization is doing better than ever, with miniature cameras and video cameras so small that they can be hidden in a pen, a cell phone, the temple of a pair of glasses, a shirt button, etc. Nanotechnology now makes it possible to have a human ingest a transmitting chip that can be remotely monitored, and all of the associated progress in medicine that this would allow.

Remote Operation

These devices, implanted subcutaneously or concealed in packaging, contain no less than a shortwave transmitter, or even a GPS relay, and memory that can be read remotely, for example, when going through a twin antenna gate at the entrance to a building, in the street, or even capable of being located anywhere by satellite. This means that someone using a cellular telephone can be precisely located almost to the second. Once the phone is on, even if it is not being used in conversation, it is automatically in contact with the relay towers of the communication system, and any use is monitored. This feature has already been used, like DNA samples, to demonstrate in court that a criminal was at the scene of a crime. Of course, this remote surveillance can also track the use of a bank card or a credit card, which can be used through an Internet connection with a bank server, which records the place and time.

Convergence

Miniaturization can be linked by relay to remote computers that can record and store the signals that are captured and then process them. Wireless and Bluetooth systems can decrypt the contents of a computer or a cellular telephone remotely by shortwave, whether from a car parked in front of a company’s head office or an individual’s home. It is therefore important to be aware that these miniaturized technologies, which are already very powerful on their own, can be networked wirelessly with all of the most powerful and advanced digital technologies available.

Invisibility

Power and invisibility are being coordinated in this way. This makes it easy for us to forget that we are continually being monitored remotely. We forget about the cookies installed in our  computers from the moment they leave the factory, along with those sent without our knowledge by Internet servers, which can read our hard disks and malicious software such as keystroke loggers and viruses that can transmit, modify or even destroy the contents of our hard disks remotely. Not to mention spyware, sent by companies or curious people to find out where we are navigating on the Internet, or to read our files, and monitor any legitimate or illegitimate downloads and uploads. Connecting to the Internet now means taking the risk of installing a powerful spy in your home, one at the very centre of our professional and private communications.

Similarly, we cannot see the networked devices that can scan all our fax, Internet and telephone messages. They are “in the digital ether.” Completely invisible surveillance satellites can now monitor any activity here on Earth that is likely to be of interest, on a scale of only a few metres. We don’t pay any special attention to discreet Webcams located in cities, on subway or bus routes, at shopping centres, along highways, all of which can record what we do and transmit it to remote surveillance centres, and which are also linked to databases and search engines capable of facial recognition, detecting atypical behaviour, and immediately reporting it to an alerting system.

Invasion

Miniaturization, together with invisibility and versatility, is increasing their use in virtually every area of human endeavour, whether, as for bar codes, which they are replacing, to be used to  identify consumer products (they are being tested in shopping centres), or on us, the citizens of the digital age, because there is a trend towards increased use of these technologies for our ID documents, credit cards, medical records and personal items (car, telephone, public transit travel card, toll road card, business cards, badges, etc.).

The production cost is dropping rapidly, and their efficiency in legitimate uses for managing our world of consumer items is contaminating areas that are much more sensitive, such as the protection of our privacy, which is equally legitimate.

Speed and Real-Time Recording and Access

In an era that is increasingly driven by the values of efficiency, and hence speed and real-time management, digital technologies meet our wildest expectations. Remote surveillance centres can not only continually receive all the information delivered to them by invisible remote surveillance devices, but can also process it, classify it, crosstabulate it and display it within a few seconds on remote surveillance monitors. The speed and power of the servers to which they are linked doubles every 18 months, according to Moore’s Law. Google can scan billions of Web pages in a few tenths of a second. Allow me to recount the following anecdote I heard: an immigration employee at an American border crossing decided to check the name of a traveller not only in his police databases, but also via Google; he found that the traveler had admitted in a book to having used drugs. He had the person arrested, questioned, detained and turned away!

Traceability

RFIDs, the remote surveillance of messages and people by scanners, Webcams, or satellite GPSs, are all convergent devices that are very powerful because of their links to databases. They can be used not only to capture signals and information, but can also closely monitor the movements of these signals. In the agri-food industry (whether the source is a sick animal, the cold chain*, or a terrorist’s cellular telephone), this traceability can be extremely useful. When ordinary citizens are involved, some serious questions need to be asked. When information is indexed or tagged (invisible metadata) so that search engines can rapidly find it on the Web and tell us about the book, the library, the year, the author, etc. for this information, we have a semantic Web that is extremely valuable for research and information. When the researchers themselves are tagged by indexing their profiles on the basis of their browsing habits, then it is true that this makes it possible to more accurately and more quickly find what is of interest to them. But doing this also creates what I have called the “hyperweb”³, that is to say hyperusers about whom data are stored and linked to their virtual semantic hypercommunity, and which then can be used in datamining by commercial marketers, or even for witch hunts. Google is also using this hyperweb method, as is Amazon.com, which records its customers’ book purchases, and is thus able to make suggestions to other customers (B and C) who may have bought one or two of the same books as customer A, and tells them about other books that customer A has also purchased.

Data Storage and Continuity

Needless to say, the current practice, one that is difficult to prevent and even desirable in the case of medical records, is to keep records accessible well beyond the four, five or six years that data banks are often authorized to keep the data they collect about citizens going about their various activities. The trails we leave behind us in all of our consumer behaviour (credit cards), as taxpayers, at border crossings, etc., build up and can stick to us like a criminal record. It is important to remain aware of the fact that the digitized archiving of data does not pose the same challenges in terms of space as the paper records of the STASI, and such data can be accessed the very moment people want to see it.

II – Interesting Social Uses

No one can deny the convenience and efficiency of electronic money, or of the smart cards that increasingly allow us to pay for a subway trip, a bus trip or even to travel on a toll road. The cookies in our computers also greatly speed up the time it takes to display our usual files and Web sites.

We are not questioning the need for restricted access to secure areas, protection from terrorists, or even protection from thieves through the use of motion detectors. But these devices tend to get us accustomed to certain technologies which, as is usually the case, are neither good nor bad in themselves. It is how we use them that can be good or bad, and that is what should retain the attention of lawmakers.

For a few years now, – 2002 or 2004, depending on the sources – over 2,000 people have been carrying VeriChips, which use RFID, that can provide the contents of their medical record at a very modest cost of approximately C$250. Subcutaneous chips are being tested in Europe for a variety of purposes, including as debit cards. Similarly, in Mexico, close to 160 people have been indexed with a subcutaneous chip that allows them access to high security areas.

Implanting a subcutaneous chip with GPS can protect people⁴. By this I mean people whose safety is in danger (illness, children, celebrities in places where there is a high risk of kidnapping, soldiers in battlefields). It can also become an electronic leash for prisoners on parole. This digital Angel, the name used by a U.S. manufacturer, can protect our safety in many ways.

Technological progress should therefore not be rejected wholesale. But the subject of our concerns lies in the potential abuses, which can become widespread, and that is what we are going to discuss.

III - The Pernicious Effects of Invisibility

More and more people are pointing to the dangers of a digital Wild West, an area of extremely rapid technological development that attracts investors looking for quick profits, and willing to use research funding for legitimate purposes, such as those we listed above, but who also use them for much less desirable activities. And it needs to be pointed out that the current lack of legislation promotes these misuses. There are no laws yet that would be able to provide a framework to mitigate the pernicious effects of these technologies.  Worse still, the current paranoia over threats of terrorism, particularly in the United States, is encouraging public funding for such research and its excessive use by antiterrorism institutions that have statutory exemptions from any laws that might exist, and encourages tolerance that is as discreet as it is dangerous from the standpoint of democracy.

Electronic voting is another case in point, because it would be very easy from a technological standpoint to keep track of how voters vote. Everyone knows that insurance companies would like to have access to our health records and our traffic violations. The fear of identify theft, illegal access to personal databases, electronic theft of money, because it is illegal, encourages the development if increasingly sophisticated electronic controls. It is cops and robbers all over again, taken to the next level.

We can only hope that there will never be a STASI again – a naive hope, perhaps – because a STASI that has access to current digital technology would be a fearsome octopus indeed. It needs to be clearly stated that the current status of the fight against terrorism encourages some very dangerous abuses. We are delighted to learn that intelligence services have been able to succeed, partly as a result of their surveillance of personal messages, the Internet and cellular telephones, or perhaps even through the use of Webcams, and have been able to prevent disasters. But we also know that mistakes and abuses are increasingly possible, indeed more frequent.

Likewise, indexing of our consumer profiles – the invisible trail that we leave everywhere behind us when we make online purchases or store purchases using credit cards – promotes datamining techniques over which we have no control. We have no access to these databanks, we can’t see them, we don’t know whether they exist, or where, and yet we are surprised when we receive mail or e-mail that appears to be so closely targeted to our “lifestyle”. We have no protection from these invisible watchers and recorders of our private behaviour.

IV - Recommendations

To Deal With the Complexity of the Phenomenon

In view of all these probable and likely even more widespread threats and misuses of technology, democracies are clearly still powerless, and even accomplices. Not only is the law evolving more slowly than digital technologies, but our consciences are even slower. Legislating in these areas often raises fears that cause inhibitions. People argue that it is important not to slow down technological and economic development. People say that by the time laws have been passed, the nature of the problem will have already been altered by technological advances. We fear the pernicious influence of dysfunctional legislation on technologies, claiming that it could even have unforeseeable negative impacts because everything is new in these areas and everything is constantly changing.

Lawmakers and members of Parliament cannot also be information technology specialists, and they generally need to rely on experts who may even disagree among themselves. That is what is happening with control nanotechnologies, just as it has happened with stem cells in medicine. Should research be allowed? How? Should it be prohibited when there are obvious advantages and growing international competition?

One essential fact needs to be mentioned here. If we want to control these surveillance technologies, there will have to be not only a legislative framework, but also leading-edge technological research in order to be able to put into practice what we decide to do. Maintaining control over the uses to which digital technologies are put is reminiscent of the myth of Sisyphus.  The task always needs to be started over again, because technologies change, methods are developed to sidestep prohibitions, and algorithms are altered as well.  Not only is it impossible for legislation to be written as quickly as pages of programming, but it also cannot guess what technology will be invented tomorrow morning and implemented by afternoon.

As for citizen’s control (or social watch) it is paradoxically more and more difficult to effect because of the complexity and invisibility of digital technologies, and yet it is also perhaps the most effective form of control. There are all kinds of people who are developing freeware, who invent wiki software, who exchange information in virtual communities, and who come up with ideas for sites like Youtube and Myspace, which amounts to grassroots democracy. There are misuses, but also a genuine digital democracy, within which abuse by police, humanitarian scandals and financial wrongdoing all have more trouble hiding than in the past. Information is becoming democratized, and circulating more freely than ever before, thanks to digital technology.

Legislative Drafts

Many statutes in various countries are attempting to control and even guarantee the transparency of these devices, about which all citizens, whether at work, in their dealings with government including the police (but excluding the secret intelligence services that always have exception status), and in their private communications, must legally be kept clearly informed. We are learning to legislate, if not in terms of changing technological details, then at least on the principles involved, which remain stable. For example, the European Union and the Government of California have drawn up legislation (see appendices).

Some non-profit organizations are also actively combating the spread of these miniaturized surveillance technologies. One major example is CASPIAN, about which a great deal of documentation has been appended.  It is impossible in this working paper to put forward specific legislative recommendations.

An Urgent Debate for Canada

It is also high time here in Canada, in a country that legitimately boasts about being an advanced democracy, that we do some serious collective thinking about, and establish legislative principles that could provide a framework for, the public ad commercial uses to which we can put these unavoidable and exponentially growing technologies.

Endnotes

* A “cold chain” is a temperature-controlled supply chain. Cold chains are common in the food and pharmaceutical industries.

1. www.fr.wikipedia.org/wiki/Jeremy_Bentham
2. Hervé Fischer, Etc. review, Montreal - July, 2005, http://www.c2so.ens-lsh.fr/IMG/pdf/7-COMMINT-_Herve_Fischer.pdf
3. Hervé Fischer, Observatoire international du numérique (blogue)
4. Kevin Warwick, the English researcher, implants chips near the brain and has been conducting some remarkable experiments. See his site: www.kevin-warwick.com

Also useful is Mario Tessier’s Extropiens et transhumanistes, in the journal Solaris, No. 161. Winter 2007, Montreal (pp. 114-131) or consult a number of sites about trends in the transformation of human beings into digital or bionic beings, also called cyborgs:

• Institute for Ethics and Emerging Technologies: www.ieet.org
• Technoliberation.net
• Future Hi Blog: www.futurehi.net
• Cyborg Democracy www.cyborgdemocracy.net
• Better Humans www.betterhumans.com

We also recommend a number of essential general works:

• Francis Fukuyama, Our Posthuman Future, Consequences of the Biotechnology Revolution, Farrar, Straus, and Giroux, 2002.
• Michael Chorost, Rebuilt: How Becoming Part Computer Made Me More Human, Boston, Houghton Mifflin, 2005
• Jérôme Goffette, Naissance de l’anthropotechnie: De la médecine au modelage de l’humain, Paris, Librairie philosophique Vrin (Pour demain), 2006.
• Dominique Babin, PH1, Manuel d’usage et d’entretien du post-humain, Paris, Flammarion, 2004
• David Brin: The Transparent Society, Perseus Press, 1998
• Dr. Katherine Albrecht and Liz McIntyre, Spychips. Penguin/Plume (October 2006). http://www.spychips.com/book/booksales.html

TERRA INCOGNITA
Privacy Horizons

29^th International Conference of Data Protection and Privacy Commissioners

Nanotechnology and the United States National Plan for Research and Development In Support of Critical Infrastructure Protection
By: Lisa Madelon Campbell

Published in Canadian Journal of Law and Technology
Vol. 5, no 3
November 2006

In an effort to predict and avert threats to national security, governments in general, and that of the United States in particular, have devoted considerable resources to developing technological systems that gather information about individuals. In the past five years, the U.S. government has collected information about the movement of individuals across and within its national borders from various sources, including border security stations, law enforcement officials, and immigration authorities. Until recently, it seemed impossible for the U.S. government to draw useful analyses from all of the data it is collecting. The sheer volume and complexity of the information made it appear unworkable to perform an analysis in time to act pre-emptively. Now, developments in computing technology suggest that not only will it soon be possible to collect and process vast amounts of data, it will be possible to do so in real time, giving law enforcement officials unprecedented capacities to engage proactively.

This paper will examine the ways in which nanotechnology will likely revolutionize the computing industry, and the effect of these developments on the U.S. government’s collection, processing, and dissemination of information about individuals for national security purposes. In an earlier article,¹ I examined the rising use of biometric, or physiological, data by governments in order to track individuals. One of the problems discussed in that paper was that while governments might collect vast amounts of information about individuals, they lacked the capacity to usefully process and analyze that information. Developments in nanotechnology are likely to change that.

This paper also considers the importance of engaging the public in the development of emergent nanotechnologies, due to privacy and health implications, and also because of the growing realization on the part of the scientific establishment that the success of any new technology depends in large part upon its acceptance by the community as a whole.

The Science of Nanotechnology

In order to understand how nanotechnology will forever alter methods of computing, it is necessary to first examine the science.  In essence, scientists have discovered that at the level of the ultra-small, there exist computing capacities that far outstrip the storage and processing capacities of the most powerful computers in operation today. As is discussed below, in an interesting intersection between biology and technology, nanotechnology employs organic cells to create computing devices that will be able to store and process vastly greater amounts of information than existing computers.

The ideas underlying nanotechnology were first described in ancient Greece by Democritus of Abdera (ca. 460-370 BCE), when he posited that all matter was composed of distinct, minuscule atoms, and the word "nano" stems from the Greek word for dwarf.² A nanometre is one-billionth of a metre, and nanotechnology involves the analysis and manipulation of matter at sizes approximately 1 to 100 nanometres.³

In the late 1950s, the Nobel prize-winning physicist Richard Feynman talked about rearranging atoms for information storage purposes.⁴ Three decades later, the modern field of nanotechnology was born with the publication of K. Eric Drexler’s "Engines of Creation: The Coming Era of Nanotechnology".⁵ He initially described the devices that would allow atoms to be bound together into a multitude of stable patterns as ‘assemblers. Drexler later formulated an intricate description of molecular manufacturing that would become possible through the use of these assemblers.⁶ As he describes it:

Nature shows that molecules can serve as machines because living things work by means of such machinery.Enzymes are molecular machines that make, break, and rearrange the bonds holding other molecules together.  Muscles are driven by molecular machines that haul fibres past one another.  DNA serves as a data-storage system, transmitting digital instructions to molecular machines, the ribo-somes that manufacture protein molecules.  And these protein molecules, in turn make up most of the molecular machinery just described. ⁷

Nanotechnology operates on a minute scale: atomic and molecular levels, or 1/100 nanometre, can be compared to 1/100,000 of the diameter of a human hair. ⁸   Proteins and Deoxyribonucleic-acid ("DNA") are usually from 5 to 200 nm, whilst blood cells are 5,000 to 10,000 nm in size. Nanotechnology is not simply science on a minute scale; it is the manufacturing of materials and processes that have chemical and biological aspects that differ from manufacturing as we know it.⁹

Completely distinct from traditional forms of manufacturing, nanotechnology looks instead to biology as a model, organizing atoms and molecules to create sophisticated constructs that can perform extremely complex operations. ¹⁰ Nanotechnology is already in use in a number of diverse applications, including the titanium dioxide used as a transparent ingredient in sunscreen that cannot be seen when applied to the skin, and faster, smaller-sized computer memories.¹¹

The Nanotechnology Industry

To date, more than 20 countries have developed nanotechnology programs, and the annual collective investment globally is estimated at $4 billion.¹²  United States government officials have compared the probable socio-economic impacts of nanotechnology to the Industrial Revolution. In 2004, the global financial impact of nanotechnology was estimated at between $20–$50 billion in revenues.¹³ The Japanese government is the biggest spender on nanotechnology among Asian countries, and their funding in the fiscal year 2003 outstripped the United States at $13 billion. ¹⁴ In its financing and regulation of emerging nanotechnologies, the European Union takes a somewhat different approach from the United States and Japan, placing greater emphasis on the potential returns to society.¹⁵

Over the last six years in the U.S., government spending for nanotechnology has nearly tripled, and the 2007 budget request for nanotechnology research and development is close to $1.3 billion.¹⁶ The U.S. government is by far the heaviest investor in nanotechnology in the United States.¹⁷ As the U.S. director of the Office of Science and Technology Policy has observed, "investments in nanoscale science and technology research and development are essential to achieving the President’s top three priorities: winning the war on terrorism, securing the homeland, and strengthening the economy".¹⁸ Put another way, the federal government seeks to exploit the potential of nanotechnology for broad economic and national security purposes.¹⁹

Molecular Computing Made Possible

Computing has evolved tremendously in the past three decades, and a concept called Moore’s Law, or the doubling of transistor density every year and a half, developed as observers witnessed the increasing computing capabilities of devices currently in use. Put simply, "the computational power that $1,000 buys has doubled every two years".²⁰ Both size and cost have been reduced over time; a transistor that cost $1.00 in 1968 cost a mere ten-thousandth of a cent in 2002.²¹

However, the physical limits of the traditional semiconductor computer chip will soon be reached: it is impossible to fabricate smaller chips and maintain the same computing capacity. Because of this, molecular electronics, or computing on a cellular level, will become the next paradigm. Nanotechnology applications will increase the performance of electronic memory and embedded intelligence systems at a greatly reduced cost. As an example, a company based in Vancouver, Canada, is building a quantum computer with thumbnail-sized chips that will have more computing power than the aggregate of all computers built to date.²²

Several computing firms are currently developing memory chips that are based on carbon nanotubes and that would vastly increase the storage capabilities of mobile devices.²³ To make carbon nanotubes, tiny sheets of graphite are rolled into extremely narrow cylinders that are mere nanometers in diameter. Their small size and efficient conductivity make them well-suited for use in electronic devices. ²⁴ Abandoning the process of placing transistors onto silicon, these new technologies will rearrange molecules and atoms, carbon and other materials, enabling them to act as transistors, wires and processors that will be exponentially more powerful than computers we have today.²⁵

In 2003, scientists in Israel announced that they had created a molecular computing machine that could be programmed and that was over 100,000 times faster than the fastest PC. Using a single DNA molecule as software, and enzymes as hardware, the chemical reactions that occur when these are mixed together allow them to perform computing operations.²⁶ While many applications are in development, some nanomaterials and technologies are currently in use. For example, the storage capacity in most computers can now be increased through the use of nano-thin layers of magnetic materials.²⁷

This reduced size and increased computing capacity also has implications for the ways in which computers are used. The devices that are used to access the world-wide web are becoming increasingly smaller and differentiated, such that they will soon be able to be incorporated, in a subtle and unobtrusive way, into the environment in which we live. Significantly, these computational devices can now sense information about the physical world in which they are situated, including visual images, sounds, and changes in temperature and electromagnetic resonance.²⁸ They have been described as "a digital nervous system grafted onto the material world": ²⁹

What we can expect, then, are networks of miniaturized, wirelessly interconnected, sensing, processing, and actuating computing elements kneaded into the physical world.  This animated control loop – of sensing data, processing it, the responding to it – can take place without direct human intervention or delay without direct human intervention or delay. ³⁰

The development of nanosensors, which would allow for accurate and instantaneous monitoring of events such as chemical warfare initiatives, is already underway.³¹ Sensors will soon be built into a vast array of materials, such as gas sensors in motor vehicle engines and chemical detectors in water supplies.³² Some predict that this will allow for the development of so-called "pervasive computing", where the primary communications device would be a more sophisticated version of today’s hand-held computers. These more evolved devices would be telephones, and provide access to the world-wide web as well as to various networks and databases. The primary impediment to the development of this technology is the challenge of providing sufficient power sources for these devices — lithium batteries currently used in cellphones and notebook computers are not powerful enough for devices that would perform several more functions.³³

While governments have an obvious interest in pervasive computing for reasons of efficiency and economies of scale, it is quite likely to spread on its own, in the same way that the worldwide web has, through individual citizens’ desire for more information about the environments in which the operate³⁴   As nanotechnology makes possible smaller and smaller computing devices that have even greater computing capabilities than their predecessors, it will be become both more economical and efficient to collect, store, process, and distribute vast amounts of information.  This will inevitably impact on individual privacy and security.³⁵

The U.S. National Nanotechnology Initiative

The federal government in the United States has long intervened financially in order to boost the development of added value technologies, and in particular, it did so after World War II.³⁶ The development of the modern computer came about largely as the result of government-funded military research projects during World War II.³⁷

In 2003, the U.S. government passed into law the21st Century Nanotechnology Research and Development Act ("the Act"),³⁸ which has as its main purpose to develop commercial uses for nanotechnology. The Act allocates close to $5 billion in funding from 2004–2008 to the National Nanotechnology Initiative ("NNI"), an initiative that groups together the programs of nine federal agencies, including the National Science Foundation, the National Aeronautics and Space Administration, and the Department of Homeland Security. The federal administration describes the NNI as a top multi-agency research and development priority, and observes that federal spending on nanotechnology research increased by 83% in the previous two years,³⁹ and was expected to total $1 billion in the fiscal year 2005.⁴⁰

One of the main goals of the NNI is to fund research and development that will enhance national security in the United States.⁴¹ The vision of the NNI is described as “a future in which the ability to understand and control matter on a nanoscale leads to a revolution in technology and industry”⁴²,  and towards this end the NNI commits to expediting the discovery, development, and deployment of nanotechnology in order to promote national security, among other things.

National defence and security are seen as areas of cross-cutting application; in pursuit of these goals the NNI is working towards the development of "systems with the speed and capacity to enable command, control, communications, surveillance, reconnaissance, and information dominance".⁴³ While some 14 departments and agencies participate to some extent in the development of nanotechnology for national defence and security purposes, as can be expected these drivers are of primary interest to the departments of Homeland Security and Defense.⁴⁴

The Department of Homeland Security has also established a virtual National Cyber Security research and development Center.  The Center is the umbrella organization through which the department’s funding for cyber-security research and development activities is distributed, ⁴⁵  The departments of Homeland Security and Defense are participating in the development of nanotechnology-based systems that will increase the speed of computers, and allow for stable and expanded memory out of their interest in surveillance and communications⁴⁶ Of the 23 federal agencies that participate in the NNI, 11 have research and development budgets for nanotechnology.

Through funding either in whole or in part from the NNI, nano-electro-mechanical sensors have already been developed that can detect and identify even a single molecule of a chemical warfare agent. On the computing front, funding from the NNI has aided in the development of prototype data storage devices, based upon molecular electronics, that have data densities one hundred times that of the highest density commercial devices that are currently available.⁴⁷

The U.S. National Plan

The National Plan for Research and Development in Support of Critical Infrastructure Protection, ⁴⁸ ("the Plan") published by The Executive Office of the President, Office of Science and Technology Policy, and the Science and Technology Directorate of the Department of Homeland Security in 2004, underscores the interconnectedness between government, private industry, and individual citizens. As the Plan observes, "critical infrastructures are not just building and structures — they include people and physical and cyber systems that work together in processes that are highly interdependent."⁴⁹

The Plan outlines one of the primary goals for critical infrastructure protection: to integrate monitoring and surveillance systems with data collection, analysis, and the production of reports. What the authors of the Plan hope this will provide is "real-time situational awareness capability" that would provide what they describe as a "national common operating picture". They predict that "the heart of the system would be a sensor network that is intelligent, self-monitoring, and self-healing to allow continuous operation for situation monitoring and information transfer."⁵⁰

The authors of the Plan rightly foresee that this will be made possible if current predictions about the development of computers are realized. Rather than relying upon wires and electricity, computers in the future will be based upon biological processes that use molecules and chemical exchanges. Quantum computers will likely be able to transmit information through the spin of an electron, allowing them to perform vastly more complex functions than today’s computers.⁵¹

The transformational developments in computing power come at an opportune time for lawmakers in the United States, because, as the authors of the Plan observe, "massive amounts of data will need to be processed and analyzed to selectively filter out background signals in order to detect anomalies or patterns.”  All of this data will need to be set in the context of information received from various sensors, and be further analyzed if it is to be of any use to the law enforcement and intelligence community.⁵²

Predicting what people will do is a difficult business. However, the Plan states:

The detection of intent involves examining combinations of observations, actions, relationships, and past history  In order to accurately sense whether a person, group, or series of events might be the purveyor of or precursor to terrorist events. ⁵³

The intelligence and law enforcement community may be aided in this respect through the use of so-called "psychologically/physiologically-oriented sensors" that could reveal an individual’s state of mind.⁵⁴ The Plan forecasts that:

Intelligent systems will have multiple types of sensors,  communication capabilities so they can "talk" to each other,  and computing capabilities so they can perform analyses, compare sensed data and analyses, and learn based on analyses and experience. To be pervasively deployed, such smart sensors need to be low-cost, durable, accurate, self-calibrating, and environmentally adaptable. The sensors and systems of sensors will need to be "taught" to be threat-aware, self-configuring, and self-healing. They may be wired  or wireless or a combination of the two — but they must be informationally secure.⁵⁵

These advanced systems will include "smart networks" that communicate with each other and organize tasks so as to collaborate, adjusting themselves to respond to evolving situations.⁵⁶ The Plan recognizes the need to incorporate into computer modeling systems as many biometric measurements as possible, in order to reinforce the accuracy of identification and authentication systems.⁵⁷

These research and development efforts are geared towards what is described in the Plan as "dynamic situational control", essentially, a somewhat ambitious plan to collect vast amounts of data from people, objects, and sensors, analyze this data and then infer actions or intent so as to control the outcome of a given situation:

Dynamic control is the ability to integrate and act on the multiple streams of data collected from people, objects, detectors, and a variety of data systems, such as freight tracking data, airline passenger manifests, Interpol, FBI, local police records, financial information, etc.⁵⁸

Towards the conclusion of the Plan there is some, albeit brief, mention of the necessity of protecting individual and privacy rights. The authors suggest that it will be important to understand the impacts of developing huge databases that contain information about citizens living in the United States and elsewhere.⁵⁹

Implications of Governmental Use of Nanotechnology in Surveillance

Even if developments in nanotechnology make these new computing capabilities a reality, some challenges remain. The United States government is already implementing, as a research and development priority, multi-database monitoring systems that provide information to law enforcement personnel. The United States Visitor and Immigrant Status Indicator Technology Program, a universal entry-exit program promulgated by the Department of Homeland Security, will collect vast amounts of information about individuals as they arrive and depart from the country. Included among the vast array of information collected will be name and gender, biometric information, citizenship, place of residence and complete address while in the country.⁶⁰

As the authors of the National Plan euphemistically observe, however, "the bulk of these systems will continue to contain legacy technology for which interfacing may be the best that can be done to improve security. These legacy elements are not always capable of integration or intelligent collaboration".⁶¹ This is a reference to the fact that numerous and diverse databases have been developed through law enforcement initiatives over the past two decades. Many of these employ incompatible technologies and collect data based upon differing sets of rules, with the result that they cannot simply be combined into a single, searchable database.

The government’s desire to collect a wide array of information may reflect the knowledge that individual profiling, which is in essence what is being done, is ineffective if it is done using only raw characteristics such as race, for example. Race alone cannot predict human behaviour; and overreliance upon it can mislead law enforcement authorities and place innocent persons at risk of investigation.⁶² Governmental policies involving the racial profiling of Arabs, Muslims, Sikhs and South Asians in the United States since 2001 have failed to uncover substantial terrorist criminal activity against the United States, which points to the failure of race alone as a predictor of violent behaviour.⁶³ As several commentators have observed, the notion of the "terrorist" that has developed in the political culture in the United States is an intricate formation that includes aspects of race, nationality, and religion. It may unfairly cast members of certain groups are being more likely to commit acts of violence.⁶⁴

Similarly, while the spread of pervasive computing will make it much easier to situate and track the movements of individuals,⁶⁵ geographical location alone is not a reliable indicator of future behaviour. So what type of information is the government trying to collect? As many types as possible, it would appear. Persons wishing to cross national borders will be required to provide intimate biological information about themselves, and this information will be stored and used to positively identify them as they move within the U.S.. This information will be compared with information from law enforcement officials, border stations, and immigration officials.

A significant reason for the U.S. government’s investment in nanotechnology is to collect information and prevent actions that may threaten national security. As recent catastrophes have shown, however, government acting alone is often singularly incapable of reacting swiftly and appropriately. As some have noted, decision-making in the 21st century, and the power that goes with it, is de-centralized.⁶⁶ Private entities are vertically and horizontally implicated at almost every level of governance, and are involved in even the most demanding business of a nation, such as military engagement.⁶⁷ An example of this is a committee convened by the U.S. Directorate for Science and Technology of the Department of Homeland Security. The Directorate has as one of its missions the objective of enhancing the technical capabilities of the department’s operations.⁶⁸ Another body within the department, the Homeland Security Science and Technology Advisory Committee, identifies research areas that are of potential importance to the security of the United States. In an interesting intersection between the needs of researchers for funding and the government’s need for research into greater computing power, this Committee consists of 20 scientists who are not government employees, and who have established records of distinguished service in relevant fields such as engineering and emergency response.⁶⁹

Public Engagement in Emerging Nanotechnologies

In addition to the privacy implications developments in nanotechnology may have, there are tangible health and environmental implications. As well, the scientific community’s view of public engagement has evolved in recent years. There is a growing realization that it is crucial to consult with, and involve the public in, the development of emerging technologies in order for those technologies to be accepted and in order to properly manage risks. Critics suggest that amidst the large sums that are being spent on nanotechnology research and development, insufficient monies are being allocated to risk management and research into the health and environmental effects of emerging nanotechnologies.⁷⁰

Scholars have recommended a so-called "postnormal" approach for inclusion of members of the public in the development of emerging technologies. They suggest that engaging the public and creating feedback mechanisms will both expand the knowledge base and identify important values and possible areas of conflict.⁷¹ Involving the public in this way transforms individual citizens into a form of "extended peer community" that can help to assess emerging technologies.⁷²

The Danes employ a method called the "Danish Consensus Conference" through their Board of Technology, an administrative agency of the government, to create policy statements regarding highly technical issues. The United States Congress employed a similar methodology when it created citizen juries on nanotechnology policy.⁷³ But to be effective, this has to be more than focus-group testing in a marketing sense. It has to be a feedback loop that takes into account concerns raised and modifies the approach accordingly, in order to build credibility and truly minimize risks.

The challenges of involving the public include the highly technical and complex nature of the terminology — as we have seen with patent issues, terms and concepts in nanotechnology are unlike anything that most members of the public would ever have encountered. Yet, as some authors have pointed out, it is essential that scientists communicate with other members of the public, and become involved in the policy issues that arise with emerging technologies. When they fail to do so, science can become destabilized and overly politicized.⁷⁴

Several commentators on developments in nanotechnology point to the European experience with genetically modified foods, where scientists failed to take into account the general public’s mistrust of this technology and the devastating financial impact that that would have on the industry. ⁷⁵ Private industry, researchers, and government alike have come to realize the importance of informing the public about emerging technologies in a transparent manner that is accountable to public concerns.⁷⁶

Developments in nanotechnology are similar to those in stem cell research in that they involve novel, highly technical scientific developments with potentially enormous societal and political implications. In both cases, the legislative process has not progressed at the same rate as scientific breakthroughs.⁷⁷ One of the understandable difficulties with involving legislators and the public is the highly technical nature of nanotechnology applications. The same problem has confounded those rushing to patent new nanotechnology applications. It is difficult for those not intimately involved with emerging nanotechnologies to even imagine some of the new concepts, let alone comprehend them, in order to make informed decisions about their uses. Consider, for example, a patent issued to Cornell University in 2004, for "Entropic Trapping and Sieving of Molecules", a process which retrieves responses to electrical stimuli in order to facilitate the downwards passing of larger molecules while smaller ones remain behind. As has been observed, the behaviour of molecules at the level of nanotechnology runs counter to the way in which we generally understand matter to react.⁷⁸

In the fall of 2005, the United States National Science Foundation provided $20 million to a Nanoscale Informal Science Education Network that will develop public education exhibits and programs in science museums. Another $14 million was awarded to universities to allow them to conduct research on the social implications of developments in nanotechnology. As well, the so-called "Societal Dimensions Program Component Area" of the NNI expects to fund $43 million in 2006 for education and research on the societal implications of nanotechnology, including privacy concerns that may arise from the use of sensors created through nanotechnology.⁷⁹

This may be an indication that the government is borrowing from its experiences in other fields of scientific development. As one researcher observed while testifying before Congress:

. . . the Human Genome project provides a good model for how an emerging technology can defuse potential controversy by addressing it in the public sphere. Mapping of the human genome carries with it many of the same potential concerns as do other fields of genetic research. The increased availability of genetic information raises the potential for loss of privacy, misuse by the police and insurance companies, and discrimination by employers. The founders of the Human Genome Project did not try to bury these legitimate concerns by limiting public discourse to the benefits of this new knowledge. Instead, they wisely welcomed and actively encouraged the debate from the outset by setting aside 5% of the annual budget for a program to define and address the ethical, legal and other societal implications of the project.⁸⁰

Potential medical applications of nanotechnology raise numerous interesting questions about which the public will undoubtedly wish to engage. If, for example, as with other emergent technologies, nanotechnology applications are mainly accessible to those with sufficient wealth to afford them in their initial stages, might there be inequalities between persons who have been “enhanced” by nanotechnology versus those who have not?⁸¹ If nanotechnology enhances a person’s capabilities, quaere whether there will be any distinction between personal capabilities and individual identity.⁸² Organizations that promote the interests of transhumanists, individuals who believe that technology may be used to enhance human beings, press for less regulation and greater investments in nanotechnology.⁸³

Some commentators have described a new "dignitarian view", which, along with utilitarian and human rights perspectives, forms an emerging triangle in debates about bioethics.⁸⁴ The dignitarian view informs the Preliminary Draft Declaration on Universal Norms on Bioethics, published by the International Bioethics Committee of the United Nations Educational, Scientific and Cultural Organization ("UNESCO") and promotes the development of scientific research within a framework that respects human dignity.⁸⁵ The International Declaration on Human Genetic Data,⁸⁶ which is principally concerned with the collection, storage and use of human genetic data for research purposes, specifically provides that human dignity must be protected.⁸⁷

The Declaration recognizes that an individual’s identity cannot be reduced to genetic characteristics, and that it is a complex mixture of environmental, social and cultural factors, including an aspect of freedom.⁸⁸
Whereas human rights concerns may be largely addressed through a requirement to obtain informed consent, dignitarians would argue that there may be situations where, even with informed consent, a given biotechnology attacks fundamental human dignity. An example of this would be an application of biotechnology that fundamentally altered what is understood to be an inherently human trait.⁸⁹ What is interesting about the dignitarian point of view is that the giving of consent does not end the matter — there is a higher value of human dignity that it would seek to protect.⁹⁰

Another challenge, quite apart from the privacy implications of nanotechnology, is the effect that miniscule matter, or nanoparticles, may have upon human health. Some scientists suggest that nanoparticles may have adverse effects upon human health for two reasons. Early laboratory studies suggest that nanoparticles, or bits of matter on the nanoscale, may enter the body more easily than larger bits of matter. As well, nanotechnology allows molecular structures to eproduce, and potentially, to self-assemble into more complex structures. This capacity to replicate and proliferate is of concern if it involves matter that is harmful to human health or the environment.⁹¹ Early studies suggest that nanoparticles not only enter the body easily, they may pass through bodily tissues from one area of the body to another, causing inflammation and damaging cells.⁹² Not much is known, however, about the toxicity of nanoparticles when inhaled or otherwise taken into the body.⁹³ In the absence of a regulatory framework, the U.S., companies developing nanotechnology applications may offer generic information about the properties of their products to the Environmental Protection Agency. This would in turn allow those companies to advertise their collaboration with the Environmental Protection Agency as a way of mitigating public concerns about their products.⁹⁴

Conclusion

Developments in nanotechnology may both facilitate surveillance and increase the power to process information obtained through surveillance.⁹⁵ These developments in technology may have an effect on traditional notions of privacy: if it becomes easier and less expensive to gather and use information about people, it may become more common, and eventually, more generally accepted.⁹⁶ The evolution of pervasive computing, with various information networks connected to many — and possibly invisible — sensors, suggests that traditional notions of privacy and private and public spaces may need to be re-defined.⁹⁷

So what does all of this do for the U.S. government’s goal, described above, of foreseeing and averting threats to national security? The U.S. government, through its Department of Homeland Security is, in a sense, engaging in a vast foresighting exercise. Distinct from forecasting, which passively tries to predict future events, foresighting is based on the notion that there are many possible outcomes in the future, and that it may be possible to intervene and affect these results.⁹⁸

The information that will be collected is raw data, mere information that cannot be characterized as security “intelligence” unless, and until, it becomes an indicator of a potential threat. Given the problems with compatibility of the existing technical infrastructure, it is unlikely that this type of sophisticated analysis will occur at any point in the near future.

More fundamentally, however some of the principles underlying the development of a massive database of biological and other personal information appear to be based upon traditional notions of scientific theory. The model outlined in the National Plan presupposes that biological, geographical, and other information will be collected, and that analysis of this data will provide a form of early warning system that will enable the government to intervene and prevent what it conceives of as harmful events.

Physicists, mathematicians, microbiologists and other scientists are developing a field of study known as "complex adaptive systems", which are inherently subjective, nonlinear, nonpredictive, and mutable.⁹⁹ The behaviour of a given group of human beings can be characterized as a complex adaptive system which, while grounded in biology, is by no means locked in by it.

Human systems tend to exhibit emergent behaviour when they exist in a realm between chaos and order, where there is some conflict but not debilitating conflict.¹⁰⁰

In building the databases described in this paper, the U.S. government appears to have failed to take account of the fluid nature of human behaviour and evolution. Human beings, both as individuals and in the communities that they form, are complex adaptive systems. If nanotechnology will soon make pervasive computing a part of our daily lives, then individuals may use it as well to gain contextual information about their environments and to modify their behaviour accordingly.¹⁰¹ It remains to be seen whether the huge financial investment in a massive surveillance system will actually assist the U.S. government in predicting and averting threats to national security.

Notes:

†Counsel, Department of Justice Canada. The views and opinions expressed in this paper, prepared for the Canadian Journal of Law and Technology, are solely those of the author and do not necessarily represent the views and opinions of the Department of Justice.

1. Lisa Madelon Campbell, "Rising Governmental Use of Biometric Technology: An Analysis of the United States Visitor and Immigrant Status Indicator Technology Program" (2005) 4 C.J.L.T. 99.
2. Robert D. Pinson, "Is Nanotechnology Prohibited by the Biological and Chemical Weapons Conventions?" (2004) 22 Berkeley J. of Int’l Law 279 at 282.
3. U.S., Nanoscale Science, Engineering and Technology Subcommittee, Committee on Technology, National Science and Technology Council, The National Nanotechnology Initiative Strategic Plan (2004) at iii.
4. Francisco Castro, "Legal and Regulatory Concerns Facing Nanotechnology" (Fall, 2004) 4 Chicago-Kent J. of Intellectual Property 140 at 140.
5. 1st ed, (New York: Anchor Books, 1986).
6. Wayne C. Jaeschke & Kimberly A. Kluge, "Innovating from Pumps to Genes into the ‘Nano-dimension’: The Legal Consequences of the Insatiable Urge to Build a Better Mousetrap" (2004) 22 Del. Law. 38 at 40.
7. K. Eric Drexler, "Nanotechnology Summary" in 1990 Encyclopedia Britannica Science and the Future Yearbook, 162 at 163 as cited in Glenn Harlan Reynolds, "Nanotechnology and Regulatory Policy: Three
   Futures" (Fall, 2003) 17 Harvard J. of Law & Technology 179 at 180.
8. Office of the Press Secretary, News Release, "President Bush signs Nanotechnology Research and Development Act into Law" (3 December 2003), online: The White House
9. Terry K. Tullis, "Application of the Government License Defense to Federally Funded Nanotechnology Research: The Case for a Limited Patent Compulsory Licensing Regime" (2005) 23 UCLA L. Rev. at 283.
10. Castro, supra note 4 at 141.
11. Pinson, supra note 2.
12. Meridian Institute, "Nanotechnology and the Poor: Opportunities and Risks — Closing the Gaps Within and Between Sectors of Society" (January 2005) online: www.nanoandthepoor.org
13. Tullis, supra note 9.
14. Dana E. Nicolau, "Challenges and Opportunities for Nanotechnology Policies: An Australian Perspective" (2004) 1:4 Nanotechnology L. & Bus. 446 at 459.
15. Ibid. at 460.
16. U.S., Nanoscale Science, Engineering, and Technology Subcommittee Committee on Technology, National Science and Technology council, The National Nanotechnology Initiative — Research and Development Leading to a Revolution in Technology and Industry (2006) at i.
17. Karen Florini et al. "Nanotechnology: Getting it Right the First Time" (2006) 6:3 Sustainable Development L. & Policy 46 at 51.
18. Office of Science and Technology Policy, Executive Office of the President, News Release, "Nanoscale Scientific and Engineering Research and Development Extend Frontiers of Scientific Knowledge, Lead to Significant Technological Advances — Supplement to President’s FY 2004 Budget Released Today" (17 October 2003).
19. Supra note 16 at 35.
20. Steve Jurvetson, "Transcending Moore’s Law with Molecular Electronics and Nanotechnology", (2004) 1:1 Nanotechnology Law and Business 70 at 72.
21. Thomas A. Kalil, "Next Steps for the National Nanotechnology Initiative" (2004) 1:1 Nanotechnology L. & Bus. 55 at 59.
22. Jurvetson, supra note 20 at 88.
23. Lawrence Gasman, "Making Powerful Information Technology Available Everywhere: Nanotech and the Next Wave: Pervasive Computing" online: Foresight Nanotech Institute.
24. Supra note 8.
25. "Where Nanotechnology & The Computer Industry Meet — Shrinking the PC" Computer Power User 2:3 (March, 2002) 56.
26. Stephen Lovgren, "Computer made from DNA and Enzymes" National Geographic News (24 February 2003), online: National Geographic News
27. National Technology Initiative, "Applications/Products" online: National Technology Initiative.
28. Jerry Kang & Dana Cuff, "Pervasive Computing: Embedding the Public Sphere" 62 Wash. & Lee L. Rev. 93 (2005) 93 at 99; also available at ssrn.com.
29. Ibid. at 112.
30. Ibid. at 99.
31. Supra note 8.
32. Pinson, supra note 2.
33. Gasman, supra note 23.
34. Kang & Cuff, supra note 28 at 101-102.
35. Fiona N. Moore, "Implications of Nanotechnology Applications: Using Genetics as a Lesson" (2002) 10:3 Health L. Rev. 9.
36. Nicolau, supra note 14 at 458.
37. Mark A. Lemley, "Patenting Nanotechnology" June 2005, Stanford Law School, John M. Olin Program in Law and Economics, Working Paper No. 304, at Social Science Research Network Electronic Paper Collection: ssrn.com, at page 8.
38. 15 U.S.C.A. §7501–7509.
39. Supra note 8.
40. Supra note 3 at iii.
41. Ibid. In his covering letter to the Strategic Plan, John H. Marburger, Director of the Executive Office of the President, Office of Science and Technology writes that, since its inception in 2001, the NNI has sought to enhance national security, among other things.
42. Ibid. at 1.
43. Ibid. at 20.
44. Ibid. at 20.
45. U.S., The Executive Office of the President, Office of Science and Technology Policy & The Department of Homeland Security, Science and Technology Directorate, The National Plan for Research and Development in Support of Critical Infrastructure Protection (Washington, D.C., 2004) at 8.
46. Supra note 3 at 21.
47. National Nanotechnology Initiative, Nanotechnology: from Imagination to Reality, online: National Nanotechnology Initiative
48. Supra note 45.
49. Ibid. at 2.
50. Ibid. at 13.
51. Ibid. at 15.
52. Ibid. at 24.
53. Ibid. at 26.
54. Ibid. at 26.
55. Ibid. at 27.
56. Ibid. at 59.
57. Ibid. at 38. Biometric identifiers are physical and behavioral measurements or characteristics that include fingerprints, hand geometry, facial features and deoxyribonucleic acid (DNA).
58. Ibid. at 41.
59. Ibid. at 67.
60. Susan Martin & Philip Martin, "National Security Discussion: International Migration and Terrorism: Prevention, Prosecution and Protection" (2004) 18 Geo. Immigr. L. J. 329, at 333.
61. Supra note 45 at 71.
62. Martin & Martin, supra note 60 at 337.
63. Thomas M. McDonnell, "Targeting the Foreign Born by Race and Nationality: Counter-Productive in the ‘War on Terrorism’?" (2004) 16 Pace Int’l L. Rev. 19, at 8.
64. Margaret Chon & Donna E. Arzt, "Judgments Judges and Wrongs Remembered: Examining the Japanese American Civil Liberties Cases on their Sixtieth Anniversary: Walking While Muslim" (2005) 68 Law & Contemp. Probs. 215.
65. Kang & Cuff, supra note 28 at 103.
66. Robert J. Rhee, "Catastrophic Risk and Governance after Hurricane Katrina: A Postscript to Terrorism Risk in a Post-9/11 Economy" (2006)
67. Ariz. St. L .J. 581 at 603.
68. Ibid.
69. Department of Homeland Security, online: www.dhs.gov
70. Ibid.
71. Florini et al. supra note 17 at 51-52.
72. Michael D. Mehta, "Regulating Biotechnology and Nanotechnology in Canada: A Post-Normal Science Approach for Inclusion of the Fourth Helix" (Paper presented at the International Workshop on Science, Technology and Society: Lessons and Challenges, National University of Singapore, 19 April 2002) (unpublished] at 7-8.
73. Ibid. at 22.
74. Beth Simone Noveck, "The Future of Citizen Participation in the Electronic State" (2004) 1:1 J. of Law and Policy for the Information Society 1 at 12.
75. Gregory N. Mandel, "Technology Wars: the failure of democratic discourse" (2005) 11 Mich. Telecomm. & Tech. L. Rev. 117.
76. Bryn Williams-Jones, "A Spoonful of Trust Helps the Nanotech Go
    Down" (2004) 12:3 Health L. Rev. 10.
77. Ibid. See also Emmanuelle Schuler, "A Prospective Look at Risk Communication in the Nanotechnology Field" (2004) 12:3 Health L. Rev. 28.
78. William P. Cheshire, Jr., "Small Things Considered: the Ethical Significance of Human Embryonic Stem Cell Research" (2005) 39 New Eng. L. Rev. 573.
79. Jaeschke & Kluge, supra note 6 at 80.
80. National Nanotechnology Initiative, "Societal Dimensions" online: www.nano.gov.
81. Testimony of Vicki Colvin, Director, Centre for Biological and Environmental Nanotechnology, before the House Committee on Science, 108th Congress (2003) in regard to 21st Century Nanotechnology Research and Development Act of 2003. Also available online: House Committee on Science.
82. R. George Wright, "Personhood 2.0: Enhanced and Unenhanced Persons and the Equal Protection of the Laws" (2005) 23 Quinnipiac L. Rev. 1047.
83. Ibid.
84. Edna F. Einsiedel & Greg McMullen, "Stakeholders and Technology: Challenges for Nanotechnology" 12:3 Health L. Rev. 5.
85. Roger Brownsword, "Stem cells and Cloning: where the Regulatory Consensus Fails" (2005) 39 New Eng. L. Rev. 535 at 538.
86. United Nations Educational, Scientific and Cultural Organization (UNESCO), International Declaration on Human Genetic Data (16 October 2003), online: UNESCO.
87. United Nations Educational, Scientific and Cultural Organization (UNESCO), International Declaration on Human Genetic Data (16 October 2003), online: UNESCO.
88. Ibid. at preamble.
89. Ibid. at Article 3.
90. Brownsword, supra note 84 at 553.
91. Ibid.
92. Albert C. Lin, "The Unifying Role of Harm in Environmental Law"(2006) 2006 Wis. L. Rev. 897.
93. Jennifer Sass, Patrice Simms & Elliott Negin, "Nanotechnologies: The Promise and the Peril" (2006) 6:3 Sustainable Development Law & Policy 11, at 11.
94. Ibid.
95. Ibid, at 13.
96. Chris MacDonald, "Nanotechnology, Privacy and Shifting Social Conventions" (2004) 12:3 Health L. Rev. 37.
97. Ibid.
98. Davis Baird& Tom Vogt, "Societal and Ethical Interactions with Nanotechnology (‘SEIN’) — An Introduction" (2004) 1:4 Nanotechnology Law and Business 391 at 394.
99. Ian Kerr & Goldie Bassie, "Building a Broader Nano-network" (2004) 12:3 Health L. Rev. 57.
100. Scott H. Hughes, "Understanding Conflict in a Postmodern World" (2004) 87 Marq. L. Rev. 681 at 683.
101. Ibid. at 684.
102. Kang & Cuff, supra note 28.