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4. Human rights and scientific and technological progress: a western perspective
TOM J. FARER
My mandate, as I understood it, was to sketch the principal orientation of peoples in the capitalist democracies of North America and Europe to the human rights issues implicated in the constantly growing capacity of men and women to manipulate the natural world and to influence virtually every aspect of human life in ways hardly imagined just a few decades ago.
TENSION BETWEEN THE SCIENCES AND THE HUMANITIES
The juxtaposition of "science and technology" with "human rights" in the overall project description implies, I believe, a felt tension between two ways of knowing the world, between two distinct yet constantly interactive realms of knowledge: the realms of science and the humanities. The quickstep of science and technology increases exponentially the means for conscious intervention in everyone else's personal and social life by the small minority of people possessed of the requisite knowledge, capital, authority, and/or coercive power. In response, morally sensitive members of the human community, including some who are themselves positioned to exploit new knowledge, search desperately for standards to channel evolving technologies toward serving rather than subverting broadly shared interests.
Perhaps their search is driven by an even deeper concern. The leaps of scientific and technological knowledge threaten to do more than sharpen the pitch of extant hierarchies and increase the destructive potential of conflicts between élites. The new knowledge imperils our very sense of what it means to be human: our subjective feeling of responsibility; our belief in the capacity for moral action and personal improvement.
Our sense of what it means to be human depends on our conviction, however unconscious, that there exists a zone of autonomous, self-conscious choice, constricted but never entirely occupied by chance and genes and chemistry, and defensible, albeit not always successfully, against the intrusion of state and private power. It depends also on an ingrained sense of what is "natural" or "authentic" and immanent in the human condition as opposed to what is accidental, transitory, and fabricated.
The humanities are a collective record of our species' claims about itself, of its deepest beliefs, of its inner life, its consciousness of the freedom to create and to dream. They are a declaration of uniqueness, a dictionary of meaning, a thread of continuity. And they are, therefore, a statement of the values integral to the very idea of themselves human beings have evolved and nourished and must sustain to prevent an ineffable, indeed unimaginable, loss of coherence.
THE IDEA OF HUMAN RIGHTS
The idea of human rights is, on the international plane of existence, the formal normative expression of those values. And like them it is a blend of two moral traditions that, in one guise or another, have competed and co-operated through the whole course of Western history. One tradition, encapsulated in the "principle of utility," declares that our pre-eminent moral test must be the relative capacity of proposed actions to maximize the welfare or happiness of the community.' This is not a collectivist approach. The community is not treated as an organism distinct from its individual members, a whole greater than the sum of its parts. Community welfare is simply the sum total of the felt welfare of each community member. Thus if many benefit greatly from a proposed act and a few are injured and no alternative course would maintain a comparable range and intensity of benefits while reducing the incidence of injury, the act is morally justified according to the principle of utility.
Sometimes opposed in practice and always in theory is the moral tradition emphasizing the individual as the possessor of certain inalienable rights, rights which he or she may lose by unjustly diminishing the rights of others, which can be voluntarily waived, but which cannot be stripped by a majority however great its size or exigent its need.2
This distinction is relevant to my efforts at delimiting the issues I have been asked in very general terms to address. At its inception, the global human rights movement emphasized political and civil rights, rights of an essentially individual character, rights which can to a large degree be realized merely through the inaction, i. e. the tolerance, of governments. It was not long, however, before many advocates of a non-Darwinian politics demanded equal status for economic and social rights. Their realization required - in most if not all cases - not merely tolerance by the state and enforcement of that public order that incidentally protects the individual from at least the cruder forms of private coercion; their realization required a distinct, often a novel, allocation and quantity of public expenditure and regulation. Unlike such core political rights as free speech, economic and social rights deal with finite goods: more for some members of the community not infrequently means less for others, particularly in the short run. Partially as a consequence of that fact, economic and social rights have remained controversial. For the generality of the globe's inhabitants, they have also remained very far removed from reality.
"THIRD-GENERATION RIGHTS"
In recent years, some UN members and certain non-governmental organizations have advocated recognition and implementation of what are sometimes called "third-generation rights," such as the right to peace, to development, and to a healthy environment.3 Although these goals are widely shared in the abstract, even some adherents of the human rights movement in the high-tech capitalist democracies have openly doubted the utility of expressing them in the language of human rights lest the latter lose their now well-defined contours and their claim, at least in the case of political and civil rights, to immediate implementation. 4
But there are other reasons for the resistance to the campaign on behalf of third-generation rights, a resistance which, not accidentally, is led by governments and intellectuals from the industrially advanced capitalist states. One is the belief that the proclaimed "right to development," rather than expressing a felt concern for universally relevant human values, is simply a tactic employed by the third-world bloc at the United Nations as part of a campaign to transfer wealth from the North to the South.5
Even assuming the accuracy of the accusation that the "right to development" is designed to or would perforce require such a transfer (rather than requiring changes in the structure of international economic relations that would promote economic growth in the North as well as the South),6 it does not necessarily follow that the claimed "right" is simply a moral veil for crudely political demands. On the contrary, if the operational substance of the "right" is a claim on the affluent for assistance in reducing third-world poverty, the right has morally appealing content.
Attempts to pre-empt that latent appeal assume the form of two propositions: first, that the "right" is intended to effect a transfer of resources from Northern taxpayers (including many persons who are not affluent) to Southern governing élites (who are); secondly, that the principal causes of Southern poverty are the policies of Southern governments (rather than unfair centre-periphery relationships stemming from the era of colonial servitude). Two corollaries of the second proposition are that any transfer will not relieve third-world misery, since its root causes will endure, and that the South cannot base any claim against the North on grounds of the latter's supposed unjust enrichment at the former's expense. 7
A second objection from some Western sources to third-generation rights, particularly those to development and a healthy environment. is that like the second generation they imply a heightened level of activity by the state and, therefore, an expansion of its power. Under any circumstances, it is argued, expanded state power has problematic consequences for the classical liberal rights clustered around the notion of a broad zone of individual freedom from state regulation. Moreover, if, as some believe, statist intervention in free markets has tended to inhibit growth and concentrate income in the third world, any declaration of rights encouraging intervention will degrade the welfare of third-world peoples.
Right-wing Western polemicists often represent North-South issues as expressions of a fundamental cleavage over the centrality of human freedom; Northern governments (above all the United States) are pictured resisting Southern efforts to subordinate the individual to the state in the name of collective interests. The papers of my colleagues who have attempted to present a distinctively third-world view of the science-technology-human rights problématique (particularly those of Drs Herrera, Weeramantry, and Chamarik) demonstrate the inaccuracy of this polemical dichotomy. For it is evident that concern for individual autonomy stands at the heart of their work. Their differences with American conservatives turn, then. not on conflicting views about the relative importance of individual and communal interests, but rather on the necessary means for expanding, and the mains threats to, the realm of human freedom.
Conservatives appear to assume that electoral competition and an economy marked by very limited state involvement are both necessary and sufficient conditions for the fullest possible realization of personal autonomy. Third-world scholars like my colleagues, as well as Ieft-wing intellectuals in the West, are impressed by the freedom-crushing potential of ineffectively restrained private power. The dilemma they face is to find a plausible source of restraint. For they are equally sensitive to the tendency of private power holders to colonize the state and thereafter combine its resources with their own. The dilemma, as Dr Chamarik points out, is particularly acute in third-world countries:
Within advanced industrial countries, hegemonic and exploitative relationships have been qualified and restrained somewhat within a democratic framework of civic and political participation. Most of the Third World's developing countries, by contrast, arc under authoritarian regimes and traditions, and practically all the public decisions are left to the tiny groups of so-called modernizing elites. . . which looks to foreign capital and its accompanying science and technology as the agent of change and modernization.8
Imported science and technology and the modes of thought that accompany them, he goes on to contend, provide the élite with additional means to exploit the great bulk of their fellow citizens. The "modernizing" imports simultaneously undermine the majority's unrealized capacity for improving the material conditions of its life and enhancing its freedom of choice by converting new information about the natural world into appropriate technologies.
We can see, then, that the view exemplified by Dr Chamarik, a view that is very much in the mainstream of third-world discourse about human rights, has two essential elements. One is the proposition that, under prevailing conditions, the development and diffusion of scientific knowledge and the technology stemming from it progressively diminishes the opportunities of most people to impart shape to their lives. The second is the proposition that this morbid consequence of science and technology derives from the capitalist centre's hegemonic relationship to the host of peripheral participants in the global system of political economy.
While the first proposition is not alien to mainstream political discourse in high-technology capitalist states, that discourse is not consistently conducted in the idiom of human rights and, unlike third-world discourse, it ranges over a narrower set of issues. Rather than seeing in science and technology a vast diffuse threat to the possibility of a dignified human existence, opinion leaders in the West worry about very specific threats to a way of life viewed on the whole as historically unexampled in terms of individual autonomy and dignity.
AREAS OF TENSION BETWEEN SCIENCE AND TECHNOLOGY AND HUMAN RIGHTS
In the capitalist democracies, the sense of connection between advances in science and technology, on the one hand, and human rights on the other is clearest in two areas: (1) procreation and child-rearing (what might be called the "biological issues"); and (2) privacy.
Each has a literary antecedent: for the first, Aldous Huxley's Brave New World, with its anticipation of genetic selection; for the second, George Orwell's Nineteen Eighty-four, with its vision of a state apparatus endowed with the means and the will to conduct perpetual punitive surveillance of its defenceless citizens.
Potential uses of recently acquired knowledge about human biology threaten several of the rights enumerated in the International Covenant on Civil and Political Rights,9 including the right to life (Article 6), the right not to be subjected "to medical or scientific experimentation" (Article 7), the right to security of the person (Article 9), and the right not to be subjected "to arbitrary or unlawful interference with . . . privacy [or] home" (Article 17). The vast expansion of means for exercising surveillance over individuals and associations (including tracking their movements and intercepting their conversations) and for collating, storing, and rapidly distributing resulting data directly threatens the right to privacy and tends to suppress the exercise of the rights to freedom of speech and association. One must, of course, recall that the same body of theoretical and applied knowledge which poses such risks to the rights enumerated above is also available to enhance the security and welfare of our species.
I propose to use the brief compass of this paper primarily to discuss the biological issues, as well as one other which is increasingly the subject of public debate on both ethical and prudential grounds - the issue of nuclear weapons. Its inclusion may seem paradoxical in the light of my decision not to consider third-generation rights as such. Can nuclear weapons be evaluated within a human rights framework unless one concedes the existence of a right to peace?
The answer, I submit, is yes, for two reasons. One is the erosive effect of preparation for nuclear war on democratic values, particularly the right to meaningful participation in the political process.10 The nuclear threat aggravates the apparently natural tendency toward the centralization of political power and secrecy about its uses.
A second reason stems from the fact that human rights law is one branch of a larger body of norms whose other branch is the humanitarian law of war. 11 While their development has been roughly coincident over the past century, norms governing wartime treatment of civilians and persons rendered hors de combat - i.e. persons deemed innocent and hence deserving protection to the highest degree possible from the dangers incident to armed conflict- acquired legal form far earlier than the norms governing the treatment of persons by their own governments in time of peace.12 In a world where armed conflict, internal and external, remains almost commonplace and where a very large percentage of research and development is funded by military establishments and then applied at the greatest possible speed, it might seem not merely paradoxical but perverse to discuss the impact of science and technology on human rights without mentioning an impact that could consume through omnicide the subjects of every sort of right.
Even if one puts aside so apocalyptic a view of the nuclear problem, nuclear weapons and strategies can be assessed without any implied affirmation of third-generation rights. Assessment can be conducted entirely within the framework of humanitarian law- well developed and firmly established, animated by the same moral impulse that generated the Human Rights Covenants, an impulse to protect the basic rights of individuals beginning with the rights to life and personal security.
HUMAN RIGHTS AND NUCLEAR WEAPONS
Of course the right to life is not absolute. The state acting through the medium of its police force may take the life of someone violently resisting a proper arrest or attempting to inflict grievous harm on another person. Similarly, in the course of an armed conflict, soldiers authorized by their respective political communities kill each other without violating the right to life. 13 The victims in both contexts are exempted by their act or position (combatant ready and willing to fight) from the category of protected persons. One might say they lose their formal status of "innocents. "
Discrimination in war between combatants and non-combatants (civilians and members of the armed forces rendered hors de combat) is a central requirement of our moral and legal traditions.14 Failure to distinguish was among the crimes for which members of the Nazi High Command were punished after the Second World War.15 Hence the appearance of nuclear weapons, possibly the most portentous product of modern science and technology, immediately posed grave ethical and legal issues.16 The earliest versions of the weapon had so large a killing range, even in the smallest producible size, that they could not be used with discrimination in densely populated areas. Furthermore, even if they were used in an area occupied almost exclusively by troop or other legitimate targets, the uncontrollable dispersion of radioactive particles menaced the health of civilians far from the zone of conflict, including the inhabitants countries. The most vulnerable civilians, moreover, were those with the Ieast ability to contribute to war-making activities and hence, in light of the rationale behind the laws of war, the most innocent: the very old and young.
Not only did nuclear weapons challenge the principle of discrimination, in addition they raised difficult questions of justification under two other central principles of normative restraint on the use of force: the principle of proportionality and the principle of no gratuitous injury.
The former requires a reasonable relationship between damage caused and end sought, at the grand strategic no less than the tactical level of action. In other words, states can violate the principle either by using an enormously destructive force causing incidental and unintended but foreseeable and terrible injury to noncombatants in the vicinity of legitimate targets - to secure some battlefield objective unlikely to affect the overall military balance and by using such force to win a war fought over relatively inconsequential political issues.
While the principle of proportionality operates primarily to protect noncombatants, the principle of no gratuitous injury was important to combatants and non-combatants alike. Assuming the equal efficiency of weapons systems or tactics, an army had to employ the one calculated to minimize suffering and permanent injury. One can see, therefore, why a weapon that inflicted horribly painful and permanent injury through burning and radioactivity might be chalIenged under this principle, although in many or most cases it could be defended successfully by invoking the offsetting principle of relative efficiency.17
The first and to date only use of the new weapon was as an instrument of terror designed to deliver a decisive shock to the enemy's political system. Given the stakes in the Pacific War and the efficacy of the attacks on Hiroshima and Nagasaki, the nuclear assault on the inhabitants of those cities seems to have complied with the principle of proportionality, at least in so far as the first bomb was concerned. But of discrimination there was none.18
The development of nuclear bombs was carried out in great secrecy. Moreover, right up to the first test, many involved in the project were uncertain whether they would work at all, much less what would be their precise effects. "' So this extraordinary new weapons system was incorporated into the American arsenal before military and civilian planners were able to think through its possible tactical and strategic roles. As long as the US enjoyed a nuclear monopoly while possessing only a small number of bombs, there was little incentive to see them as anything other than city-busting weapons, and hence, from the perspective of the humanitarian laws of war, as latent delinquents.
Soviet acquisition of nuclear weapons, continuing increase on both sides in the number of nuclear devices, development of missiles as delivery vehicles, and discovery of means to miniaturize the devices, vary their explosive force across a broad spectrum, and sharply reduce their radioactivity created an extraordinary demand for doctrinal development.
Theorists responded rapidly to the new incentives for concentrated thought. Indeed, as Lawrence Freedman demonstrates in his magisterial survey of The Evolution of Nuclear Strategy,20 most of the doctrinal issues which animate contemporary debate were delineated in that efflorescence of theory that marked the decade beginning roughly in the mid-1950s. The most fundamental issues, then as now, were whether nuclear weapons should be used exclusively to deter their use by the Soviet Union, as distinguished from deterring aggression by any means, and whether deterrence for whatever end was most likely to succeed by targeting Soviet cities or Soviet weapons and, in the latter case, by preparing to strike first or by preparing only to retaliate for Soviet first-use.
Neither in explicit doctrine nor force structure has the United States manifested a clear choice among these alternatives. It has, however, varied its inclination. During the McNamara era, the inclination was strongly in the direction of deterring only a nuclear attack and only by means of a retaliatory strike against Soviet population and industrial centres. The acronym MAID - i.e. mutual assured destruction - summarized this inclination.
A powerful force restraining the US from a total commitment to MAD, even under a Secretary of Defense who seemed to doubt that the actual as opposed to the threatened use of nuclear weapons could ever be a rational act of policy, was our commitment to defend Western Europe and the disinclination of our European allies to develop conventional capabilities plainly sufficient to stalemate Soviet conventional forces. Their disinclination was not merely a matter of popular preference for butter over guns. Having experienced the horrors of two wars fought without nuclear weapons and therefore able to envisage the damage a third such war would inflict on their lands where, after all, such a war would be waged, West European elites preferred what they took to be the slight danger of nuclear deterrence failing to prevent conventional attack to what they assumed would be an enhanced risk of conventional war if the threat of recourse to nuclear weapons in the event of a Soviet breakthrough were eschewed.
The felt need to retain a credible first-use option undermined adoption of a force structure designed exclusively for city-busting. For as the Soviet Union's ability to deliver nuclear strikes against the United States expanded, the credibility of our first-use threat was bound to diminish. Charles de Gaulle was only the first European leader actually to say that West Europeans could not expect the United States to sacrifice New York in order to defend Frankfurt. If that trade-off seemed incredible to them, they had to assume that it would be little more credible to Soviet authorities. Thus commitment to first-use in the event of a Soviet conventional thrust into Western Europe was bound to push the US toward a counter-force strategy, since it would provide at least some basis for believing that nuclear weapons could be employed without triggering mutual national suicide. This belief rested on the fact that if either side initiated a nuclear conflict by striking weapons and avoiding major population centres, the latter would function like hostages to tolerable conduct by the recipient of the strike, tolerable conduct being defined as a proportionate response against military targets. To be sure, hostages are sometimes sacrificed; but they would at least heighten the attractions of an invitation to a limited nuclear duel. The Soviet Union did what it could to discourage such a belief by insisting that general nuclear war would inevitably result from any crossing of the nuclear threshold. In any event, some advocates suggested, if for one reason or another a city-banging exchange began, counter-force-capable weapons and targeting might allow some reduction in the level of damage sustained by the United States.
Even as a deterrent to a first strike against the United States, however, a city-busting strategy had a credibility problem. If deterrence failed and a Soviet first-strike shattered the United States, what rational purpose would be served by exterminating the people of Russia? One could, of course, transcend the problem by following the Dr Strangelove scenario of eliminating the human factor and automating the response. But after having warning systems triggered by errant geese, this option could not have much appeal even in the rarified atmosphere of nuclear war theorists. To most people, automaticity seemed an unnecessary as well as an unbearable risk. Vengeance may not be a "rational" purpose, but it certainly is a common motive, sufficiently common to deter rational opponents.
By the late 1960s, the elements of a strategic equilibrium were in place, Missiles formed the core of each side's nuclear force. They were protected from a disarming first strike, in part by deployment in hardened silos on land and on submarines capable of using wide stretches of the globe's oceans for concealment, but in larger part by the roughly equivalent number of warheads and delivery vehicles on both sides. That numerical equivalence, coupled with certainty that a substantial percentage of missiles would abort on firing or would go astray after firing, meant that a disarming strike would more effectively disarm the initiator than his intended victim. And since neither side could defend itself against missile attack, and revenge, together with a powerfully programmed commitment to retaliation, made a devastating response to any first strike psychologically plausible, the risks associated with a first strike appeared wildly disproportional to any conceivable gain.
Both sides had multiple targeting options. They could hit weapons or cities. But the former option, if it made sense at all, did so only as part of an escalation scenario initiated by a conventional Soviet assault in Europe that could not be repelled by conventional means or tactical nuclear weapons. In other words, as I suggested above, a launch against a limited number of weapons sites located far from population centres might halt a Soviet attack by demonstrating resolve without inducing fear that the West was using the occasion of a conventional war to win a nuclear war.
Although escalation scenarios were built into NATO's strategic doctrine,
Mutual Assured Destruction was in fact the dominant theme of nuclear policy on both sides. The anti-ballistic missile arms control treaty of 1972 seemed to institutionalize the ascendancy of its supporters over advocates of a nuclear-war-fighting capability. Eschewing defensive measures, both sides seemed to accept the logic of MAD and its concomitant moral dilemma, the deliberate targeting and declared intention to annihilate civil society in response to a first strike.
The widespread belief that, under then prevailing technological conditions, MAD had sharply reduced the risk of nuclear war did not still all dissident voices. Certain theological moralists (the Protestant Paul Ramsey21 was prominent among them in the 1970s) declared unacceptable any system resting on the threat to attack civilian populations. The moral tradition for which they spoke condemned the intention to do evil no less than the doing of it. But indictment of MAD led to conflicting convictions: on one side, that nuclear weapons had to be banned; on the other, that the West had to develop weapons and strategies which would permit it to fight defensive nuclear wars without violating the traditional principles of the law of war.
Advocates of the second position conceded that, as in any major war, attacks on military targets were, under the best of circumstances, bound to cause collateral injury to the civilian population. But under the principle of the "double effect," such injury was morally tolerable because the foreseeable incidental effect on noncombatants was unintended. And, the argument continued, so long as belligerents complied as well with the principle of proportionality, the distinction between moral and immoral use of force could in practice be maintained.
Advocates of prohibition, on the other hand, believed that, once the nuclear threshold was breached, even at the tactical level, there was an intolerable risk of escalation to full-scale strategic nuclear war. In such a war, the foreseeable damage to civil society within the belligerent states and probably to neutral states as well was so vast that the conflict could not possibly comply with any reasonable conception of moral fit between means and ends. Discrimination between combatants and noncombatants was not only a virtuous end; in addition, it bonded with the principle of proportionality to bar wars of societal extermination. Thus, however unintended the damage to non-military targets might be in a nuclear attack, the attack could not help violating the spirit if not the form of the discrimination principle.22
Support for a nuclear-war-fighting doctrine and force structure did not stem exclusively from theological convictions. Since MAD is a strategy calculated to achieve virtually a de facto ban on superpower use of strategic nuclear weapons achieved, of course, through the medium of continuing possession - it was bound to cause unease among many officers on both sides. At least in great powers, military training has always had an offensive bent. While the ultimate political ends of war could as easily be defensive as aggressive, the military end was victory. To achieve victory one procured the maximum firepower available and deployed it in the way best calculated to break the will or physically to destroy the opponent's armed forces. At the same time, one sought to minimize the dam age that the other side could inflict on your own forces or its civilian base. Procuring offensive and defensive systems compatible with strategic nuclear initiatives is inconsistent with the rationale of MAD So, it could be argued, is a foreign policy designed to threaten the fundamental interests either of Soviet or American élites.
MAD, its defenders believe, makes the prospect of nuclear war so awful that rational leaders will approach with extreme caution policy options that could hurl the superpowers onto a rising and possibly uncontrollable escalator of violence. But intense stress induced by a sense of confronting a crisis diminishes the capacity for rational calculation. Persons in the grip of crisis psychology are unusually liable to misconstrue the acts of others and to misperceive the implications of their own. Diminished rationality is, therefore, one risk MAT) cannot abolish.
A second is desperation induced by the accurate belief of one superpower regime that the other is threatening its political survival. At that point, rationality becomes problematic. Confronted with great risks, reasonable people may rightly conclude that the only way to avert one disaster is to threaten (including steps to initiate) measures that could lead to another.
It is, therefore, not surprising that the division between supporters of MAT) and supporters of a nuclear-war-fighting strategy seems to coincide roughly with the division between supporters and opponents of US-Soviet détente (by that name or another). The latter, apparently convinced that the Soviet regime is driven by its very nature to hammer unrelentingly on the vital interests of the capitalist democracies,23 assume that the safest course is ceaseless counterpressure. MAD, they believed, tended to induce in Western polities a sanguine passivity. That passivity not only made the democracies vulnerable to conventional threats and subversion but, a fortiori, discouraged adoption of positive measures to reduce Soviet capacity to mount threats. And MAT) reinforced optimism with the fear that driving the Soviets into a political corner would induce the very high-risk behaviour MAD was designed to avert.
The Technological Erosion of MAD
The treaty to ban deployment of anti-ballistic missiles seemed to stabilize the strategic dimension of superpower relations. The Moscow joint declaration of a modus vivendi in the competition for global influence seemed to stabilize their political dimension.24 MAD thus appeared as a central feature of détente. But at the very moment when the superpowers seemed to be entering a new, comparatively tranquil phase in their relationship, the inertial force of technology and the unresolved contradiction of politics were laying the foundations of a new Cold War.
The political issues fall outside the compass of this paper. (I have touched on them in earlier works and will explore them more fully in a book I am now writing.) I will address only the technological ones.
The explosion of public controversy over the Reagan Administration's "Star Wars" initiative,25 which, after all, is still in an early developmental phase, contrasts oddly with the virtual silence that accompanied actual deployment of multiple, independently targeted re-entry vehicles (MlRVs). For they immediately and radically altered the numerical relationship between first- and second-strike strategies from which MAD had evolved. Perhaps it is the retrospective appreciation of just how grave a development MlRVs represented that has powered the reaction to Star Wars; for the `'Strategic Defense Initiative" (as it has been labelled by the Reagan Administration) threatens to complete what MlRVing began, namely the elimination of MAD the doctrinal instrument for keeping the nucIear peace.
As I indicated above, assuming rough numerical equality of delivery vehicles and warheads, before MIRV an all-out first strike against the opponent's strategic forces would be self-disarming. MlRVs plainly changed that arithmetic. If, for instance, each side had 1,000 ground-based missiles at known locations and each missile has five independently targetable warheads, either country could launch a first strike using only 4() per cent of its strategic force and still allocate two warheads to each of its counterpart's missiles. The conspicuous increase in accuracy both sides were achieving in test firings of individual missiles made it appear likely, at least on paper, that, by virtue of duplicate targeting, such a strike would destroy all or nearly all of its object's land-based strategic forces, the most powerful and accurate eIement in its strategic arsenal.
So much for hypothetical cases. In the real world, where US strategic forces are a triad of land-based missiles, submarine-based missiles, and bombers, the US could absorb a Soviet first strike that destroyed all of its land-based missiles and all bombers not in the air or on ready alert and still be Ieft with thousands of sub-launched warheads, enough to convert the Soviet Union into radioactive wasteland. (As demonstrated by the immense dispersion of radioactive materials released by the nuclear accident in Chernobyl, the nuclear exchange would also have horrendous consequences for many other countries, if not the entire earth.) Since MIRV did not affect either side's capacity to deliver a fatal retaliatory blow, why should it have undermined the conviction of stability induced by MAD? Doubt stemmed from the following theory: A Soviet first strike employing only a portion of its land-based missile force could wipe out its US counterpart while Ieaving the main American urban centres intact. To be sure, collateral damage from the anti-weapons strike would have Ieft millions of American dead and dying; but, it has been argued, the bulk of the population would be intact and thus hostage to the threat of Soviet counter-city retaliation if the President should order the launch of sea-based missiles against Soviet urban centres. An attack against remaining Soviet missiles would be only partially effective, SDI proponents claim, because sea-based missiles are neither as powerful nor as accurate as those based on land.26 Submarines, moreover, have no at sea reload capacity. So even if the President ordered counter-weapons retaliation, the net result would be a force ratio advantageous to the Soviet Union. For it would still deploy part of its land-based force and all of its own sea-based strategic weapons.
"So what?" some experts asked. How could this bean-counter's triumph be converted into the currency of political gain? The only targets left in the US would be its cities. At this point, at least, the logic of MAD would take over. The Soviet Union would be no better positioned than before to coerce the United States by threatening those cities, since the United States would have retained its capacity to retaliate. MlRVs should not be seen, therefore, to have affected the stability of strategic nuclear relations.
To this scepticism about the supposed consequences of MlRVs, there were several possible responses. One was little more than the naked assertion that, rightly or wrongly, most people are impressed by numerical differences. Hence, in the hypothesized case, most people would perceive a Soviet victory. That perception would shatter confidence in US security guarantees. NATO would unravel and old allies of the US would seek accommodation with the Soviet Union. It was further argued that the scenario itself would undermine West Europeans' confidence in the US commitment to their defence, relying as it does, theoretically, on readiness to employ strategic nuclear weapons against the Soviet Union.
Alternatively, it would frighteningly heighten the risk of unintended nuclear war by leading to adoption of a fire-on-warning posture. Another way of countering the first-strike risk was to develop mobile land-based missiles which could also be hidden. That, however, would complicate arms control verification and would sharply increase the tendency toward greater secrecy in government, with its associated consequences of closer screening and surveillance of government employees and the employees of government contractors. In short, because MIRV mattered in the minds of military experts, it mattered for all people, at least in the superpowers and probably in the entire world.
Whether the anxieties induced by the MlRVing of delivery vehicles in the first half of the 1970s contributed in any significant degree to the atmospherics that surrounded the crack-up of détente in the second half is problematic. What one can say with some confidence is that the crack-up, culminating in the Soviet invasion of Afghanistan, heightened those anxieties and thereby eased the way on to centre stage of hitherto marginalized advocates of strategic defence. Whether in the longer term the genie of strategic defence could have been contained in its bottle is subject to doubt. Now that it is out, the question is whether it is likely to reduce or enlarge the human rights threats generated by nuclear weapons.
Research and development, doctrinal debate, and superpower negotiations are at too early a stage to allow any self-assured answer to that question which does not smack of hubris. What one can do is identify the issues that lie at the heart of the matter. One, certainly, is the problem of transition from MAD. In developing and deploying defensive systems, the superpowers will not move in unison unless they agree to such an arrangement. In the absence of agreement, somewhere along the temporal continuum of research, development or deployment, one of them may well achieve what appears to be a serious advantage.27
Only President Reagan and a few other ecstatics appear to envisage anything like a secure umbrella.28 What SDR advocates do claim is that the technology developable on the basis of extant theory allows the United States to deploy, well before the end of the century, a defensive system that would offset the advantages conferred on the offence by MlRVs. Such a system could, moreover, deal with single missiles launched by accident, by mavericks, or by third states.
The capacity to moderate the threat of accidental or unauthorized missile firings by either superpower- as well as covert launchings by terrorist regimes, whether for purposes of blackmail, revenge, or to catalyse a superpower conflict - must be deemed a contribution to human rights. But a transition marked by unilateral, perishable breakthroughs in research, development, or deployment seems certain to heighten the risk of nuclear war. Paradoxically, the partial character of any foreseeable defensive system could prove more deleterious to stability than an airtight system, assuming the latter's capabilities were appreciated only after its deployment.29
The problem with a partially effective system is its Janus-like quality. On the one hand, by reducing the advantages of a counter-force first strike, it promises to reduce anxiety and the temptations of such dangerous expedients as launch on warning. On the other hand, precisely because it will be most effective in countering a nuclear force decimated and disorganized by a first strike, it promises to increase anxiety and, in the event of a crisis, to add in some immeasurable degree to the temptations of a first strike.
In a 1987 article, Robert Gromoll, an astute participant in the ongoing debate, argued that the "dynamics of strategic uncertainty" are still more complicated than even my last remarks suggest.30 While the status quo presents each side "with the possibility of only three basic strategic relationships - offensive equality (or parity), offensive superiority, and offensive inferiority" - once each side begins deploying ballistic missile defences, any one of nine strategic relationships will obtain at a given time. And of that nine, only three "can be deemed both truly stable and acceptable" to both parties in terms of defence of its most fundamental interests.31 Furthermore, since both sides will labour assiduously to improve their systems, transitions from one relationship to another will recur.
"The many uncertainties that (ballistic missile defence) would spawn," he fears, "could foster irrational national postures founded on boastful overconfidence, wishful thinking, and unhealthy pessimism just about as easily as they could foster more prudential assessments of strategic realities."
In conjunction with the many ambiguities surrounding [ ballistic missile defence's] likely performance in actual combat, these political and psychological variables raise greater potential for misperception of relative offensive-defensive capabilities and miscalculation of risks. Soviet and American leaders could easily arrive at notably different perceptually wrought conclusions about what [ballistic missile defence] could do, and then proceed on the basis of asymmetrical and dangerously inaccurate strategic assessments.32
For the foreseeable future, only the US and the USSR will have the capacity to deploy ABM systems. In the eyes of reasonable people, the Janus-like quality of such systems adds an important incentive for the superpowers to emphasize far more strongly the co-operative rather than the competitive aspects of their relationship. As the two principal beneficiaries of the global that arose from the ashes of the Second World War, they have a powerful vested interest in cooperating to contain the anarchic forces threatening that minimum world order without which the prospect for human rights will be bleak. We cherish the hope that self-interest will prove stronger than ideology.
THE BIOLOGICAL ISSUES: MAKING LIFE, SUSTAINING; LIFE, AND REDEFINING THE FAMILY33
Any orderly discussion of the human rights issues raised by developments in science and technology affecting conception and gestation should proceed in three phases: identification of the relevant developments; description of their present and potential uses and the social purposes of such uses; evaluation from a human rights perspective.
The key developments concerning fertilization can be summarized as the capacity to collect and preserve sperm, to collect and preserve ova, and to unite them in the body of choice or outside any body (fertilization in vitro, the so-called "test-tube baby"). The key developments concerning gestation are the capacity to move the fertilized ovum to a body of choice, to remove the foetus from the womb months before term and sustain it indefinitely, to identify many important characteristics of the foetus (for example, sex and genetic anomalies), and to intervene during gestation in order to reduce or eliminate those anomalies prior to birth.
A central objective of these developments has been to provide couples, one or both of whom are infertile, with the opportunity to acquire children and thereby realize the traditional conception of full family life. Despite the great worldwide pool of children available for adoption, many couples apparently experience an intense preference for a child who will carry the genetic endowment of at least one parent.
The choice of means for satisfying their preference is, at least in part, a function of the cause of their inability to conceive. If, for instance, it results from some sort of blockage that impedes normal ovulation, doctors can extract ova, fertilize one with sperm from the husband and replace the fertilized ovum in the wife's womb for normal gestation.
The Vatican's Congregation for the Doctrine of the Faith has condemned this measure along with all other "artificial" forms of procreation as threats to the sanctity of the conjugal act, to the family, and to human dignity. I will discuss its position below together with other views on what one author has called "the ethics of human manufacture."34 At this point I will simply note that from a strictly utilitarian perspective, in vitro fertilization raises two concerns. One is whether children so conceived have an above average risk of congenital anomalies. I gather that in theory there is no reason why this should be so. A second concern is the potential for foetal experimentation arising from the possibility of fertilizing more than one ovum. The extra fertilized ova, the embryos, could then be frozen and in that state preserved for experimental purposes. Both governmental and private groups concerned with the ethical issues arising from the new capacity for human manufacture have recognized the danger of what they uniformly regard as intolerable abuse and have proposed regulations I will consider shortly.
Where either parent is sterile, but the wife can gestate, conception obviously requires the services of a third party. But that connection is so brief and at such a preliminary stage as to minimize the third party's psychological involvement with the issue of this process. And, although the resulting child's legal and biological father or mother will not coincide, he or she need not know that, since they will experience a unity of gestation, birth, and rearing.
The risk of psychological trauma for one or more of the parties (including the child) involved in the process of conception, gestation, and parturition sharply increases when the wife is unable to gestate or where gestation and/or parturition would be physically dangerous or where, for subjective reasons of one sort or another, she does not wish to undergo the child-bearing experience. Then the embryo must develop within the body of another woman (often referred to as the "surrogate mother") who agrees before the fact to surrender the child following parturition. Limited experience to date suggests what one would in any event have assumed, that giving up the child may prove far more difficult emotionally than the surrogate had anticipated. Legislators, judges, and scholars in the United States are now struggling to decide how the resulting conflicts should be resolved.
As the variety of reasons for use of surrogate mothers illustrates, the new biological techniques can be applied to ends other than overcoming natural obstacles to reproduction within the traditional family.
One is permitting a single person to become the parent of a genetically related child even if that person cannot find a sexual partner or does not wish to conceive through sexual intercourse. Among the many consequences of these techniques, it would appear, is circumvention of existing regulations governing adoption and, in particular, inhibiting adoption by single parents.
A second unconventional end is permitting unisexual couples to form bi-generational, genetically related family units. Public efforts to block this contingency will sharply focus the claim that any government action implying discrimination on the basis of sexual preference violates human rights of association, family formation, and privacy.
A third unconventional end is facilitating genetic and sexual selection by parents or, in imaginable totalitarian political and social settings, by external agencies. As I indicated above, the sex, the genetic, and other characteristics of the foetus can now be determined in the early stages of gestation. Like every expansion of scientific knowledge and technique, this one is available both for benign and for morally dubious applications. To the extent the new knowledge permits correction during gestation of foetal anomalies that would otherwise cause early death or mental or physical crippling, it is in itself benign, although the costs of intervention and of the infrastructure that will make it possible are bound to aggravate extant inequalities in the availability of medical assistance. To the extent that knowledge leads to sexually discriminate abortion in favour of males, as many fear it will, the discrimination itself and its unpredictable effects on the social order are sources of profound concern. Even more ominous is the potential use of abortion as part of a total programme of genetic selection directed by the state or some informal centre of authority (for example, the leaders of a religious sect).
A fourth unconventional end of the new knowledge and techniques is the production and preservation of foetuses for medical experimentation and as a source of tissue for transplants, initially in the treatment of Parkinson's disease and other nerve disorders. But the potential use goes much beyond that. As the New York Times reported on 16 August 1987, current research involves the use of foetal brain, pancreas, and liver tissue to treat Parkinson's disease, Alzheimer's disease, Huntington's chorea, spinal chord injuries, diabetes, leukaemia, aplastic anaemia, and radiation sickness. According to Tamar Lewin, scientists "expect foetal tissue to be particularly valuable in implant treatments because it grows faster than adult tissue, is more adaptable and causes less immunological rejection."35
This potential for malign no less than benign applications generates crescendoing political conflict that will increasingly express itself in legislative fore. Consensus seems to be forming only with respect to the issue of foetal manufacture through in vitro fertilization for the specific purpose of producing a reservoir of tissue for transplantation. Most secular ethics committees in the English-speaking world that have considered the issue have recommended that up to 14 days after conception, the embryo be considered tissue that may ethically be disposed of or subjected to research; they have also recommended that experimentation after that time be made a criminal offence. The Warnock Committee in the United Kingdom, an ethics board set up by the US Department of Health, Education and Welfare, the 1984 Victoria (Australia) Committee, the 1985 Ontario Law Reform Commission, and the American Fertility Society in 1986 all favoured the 14-day rule. France's National Ethics Committee recommended seven days.
The perceived virtues of the rule are the fact that it provides a bright line and the line is not arbitrary. As the American commentator Charles Krauthammer points out in a provocative article on "the ethics of human manufacture":
Fourteen days marks the development of the primitive streak" after which twinning is no longer possible and neural development begins. It is also important clinically. The technique of in vitro fertilization involves taking an ovum and sperm and mixing them in a laboratory. Because the "take" upon implantation in the uterus is difficult, more than one ovum is fertilized. The clinician watches the dish in which the process of fertilization occurs to see which pre-embryos (we might call them) are developing best and implants them. Without the 14-day bright line, discarding these "spare embryos" would have to be considered murder. 36
Of course the last sentence is a non-sequitur. Logic does not require that we recognize only the polar positions of unrestricted right to use embryos and treating the embryo when it is still only a tiny mass of cells as a person subject to being murdered. Krauthammer's second argument- "clinical importance" - calls for some bright-line rule but not any particular one. But that still leaves us with at least one objective reason for the 14-day rule. Incorporation of that rule into law would, however, create at least one striking anomaly if women simultaneously enjoy an unlimited discretion to abort at least during the first trimester following conception. For in that case, a woman could legally choose to generate foetal tissues by conceiving, whether through artificial insemination or otherwise, and then aborting on the ninetieth day. A clinician, on the other hand, acting at the request and with the co-operation of the woman providing ova for in vitro fertilization, would be barred from achieving the same end unless he could act within 14 days.
Although vivid, the anomaly can be justified. Any attempt to administer a single rule in both cases would produce an appalling invasion of a family's privacy and would still not be capable of anything but the most arbitrary application. If a woman may abort for no stated reason at all, but is prohibited from aborting for the "wrong" reason (in my hypothetical case the reason being to generate tissue to aid in treating herself or someone else), a law applying equally to mother and clinician obviously would require the public authorities to establish the former's motive in seeking abortion. In attempting to protect the human rights of the foetus, the state would engage in massive violation of the right to personal and family privacy.
In addition, one might justify the anomaly on the grounds that the probability of foetal abuse is far greater where fertilization is achieved in vitro and the resulting embryo develops outside the womb. Ethical and emotional factors, as well as the physical burden of gestation, are certain to constrain tissue production through abortion. However, among the underclass in affluent states and among the general population in poor states, the terrible pressure of poverty may erode those constraints.
If tissue implantation proves to be a breakthrough in the treatment of the various illnesses enumerated above and if foetal tissue proves to be far superior to any feasible alternative, demand could soar at an extraordinary rate. And if affluent states prohibit tissue production through in vitro fertilization (or go further still and prohibit the use of tissue from an aborted foetus), economic pressure might drive impoverished women to serve as human incubators from whom embryos will be harvested. This could occur in conjunction with the establishment of clinics for in vitro fertilization in countries with permissive legislation. Some evidence now exists that the most useful tissue will come from foetuses that have developed beyond the first trimester. Entrepreneurs operating in the poorest countries might decide it was more efficient to use human rather than artificial wombs.
Laws banning the importation of foetal tissues are unlikely by themselves to combat this phenomenon effectively. If the contingencies enumerated above come to pass, and if present efforts to reproduce artificially cells from foetal tissue are not successful, the intensity of demand for foetal tissue will rival and could easily surpass the demand for cocaine. The world will then be faced with another form of unstoppable contraband, another gigantic global black market.
As I indicated in my introduction, at least four of the substantive provisions of the International Covenant on Civil and Political Rights - the right to life, the right not to be subjected to medical or scientific experimentation, the right to security of the person, and the right not to be subjected to arbitrary or unlawful interference with personal and familial privacy - bear in varying degrees on issues arising from the rapid advance in knowledge and technology affecting the process of life creation. But, as I also suggested, more is at stake than those four rights or, indeed, all the rights codified in the Covenant and other human rights instruments. The very idea of human rights arguably rests on a certain conception of what it means to be human, on a reverence for life and for autonomy, all of which could conceivably be undermined if the production, maintenance, manipulation, and termination of embryos became commonplace, and particularly if this activity were carried on to a considerable extent for profit. Parallel expansion of the extant semi-clandestine market in body parts will aggravate that risk. One way of putting the issue is whether the idea of human rights will continue to enjoy powerful support in an environment characterized by the commodification of the body.
In addressing these issues, the Vatican, through a document from its Congregation for the Doctrine of the Faith, has argued that any interference whatsoever with what it regards as natural forms of procreation will pitch humanity onto a slippery slope down which it will then tumble into a condition of moral numbness; by disregarding the Kantian principle that no human being can properly be used as a means for another's ends, ever more heinous acts will be committed in the name of utility. As a guide to all humanity rather than simply its flock, the Church's position is besieged by difficulties. Only one of them is the refusal of most people, including many Catholics, to treat the few clustered cells that are the immediate result of conception as morally indistinguishable from a fully formed foetus in its third trimester, a newborn infant, or a person in the prime of life. The view that life begins absolutely at conception evokes passionate but minority support.
A second is that the slippery-slope argument, almost wherever it is applied, is not really an argument but a raw claim so broad and diffuse as to defy verification. The claim's breadth is so full of potential to stultify human ingenuity, so indifferent to other moral claims in particular cases, and therefore so damaging to tangible interests that it invites rejection.
Krauthammer argues plausibly that "the Vatican document...is a radical act of resistance to the technological hubris of modern reproductive medicine...The Church opposes everything: in vitro fertilization, embryo freezing, embryo transfer, surrogate motherhood, artificial insemination not just by donor but even by husband."37 It is no less opposed to artificial aids in creating families than to their use in preventing conception. Yet both are widely regarded as means for contributing, on the one hand to a fuller and richer existence, and on the other to the avoidance of cruelty and suffering.
While himself rejecting slippery-slope reasoning in some cases, Krauthammer finds the argument decisive in those where it is proposed to hasten imminent death or end a vegetative subsistence for one person in order to effect a life-saving transfer of their vital organs to another. 38 The issue came into public focus when legislators in two American states introduced legislation that would allow removal of vital organs from anencephalic babies (children born with so little brain tissue that, even if they survive birth, they cannot live longer than a few months 95 per cent die within one week) before brain death is certified. If doctors wait until "whole brain death" has occurred, the organs will not be usable. Whether Krauthammer would arrive at the same result where the life of an anencephalic child is temporarily maintained by aggressive medical intervention in order to preserve organs pending a transplant is less clear. A professional ethicist, Professor James W. Walters, argues that the cases are distinguishable and that the latter should be deemed acceptable as long as the period of maintenance is fixed and, presumably, brief.39
The danger of utilitarian apologies ratcheting society into a state of generalized indifference to individual moral claims attends all the new developments in the biological field. Against it, however, stands the promise of incalculable positive contributions to individual fulfilment, as well as broad societal interests. It therefore seems likely that most polities will attempt to isolate the risk without rejecting the entire package in which it is carried. The human species' Promethian passion to better its condition through the systematic application of reason and imagination to the natural world cannot be stilled simply by the invocation of danger. If history demonstrates anything, it demonstrates that. Given the awesome implications for all peoples of the developments under review, the United Nations Human Rights Commission should assist the required effort to find morally compelling points of demarcation. In doing so, it must take account not only of the violations of human rights that could occur as a result of the new and rapidly developing technology, but also of the violations that might occur as a consequence of various possible forms of regulation by the state. It is also necessary to consider the effect of regulation on full realization of the technology's positive potential. Balanced consideration is likely to lead to distinctions between behaviour that should be inhibited through moral censure alone and behaviour that should be regulated, penalized or flatly outlawed by the state.
NEW TECHNOLOGIES FOR THE COLLECTION AND DlSTRlBUTION OF INFORMATION
Writing not long after the Second World War, George Orwell anticipated the extraordinary increase in capacity for the collection, retention, production, and distribution of information and dramatized its dark side. If we take Nineteen Eighty-four as a full statement of his views, we would have to conclude that he saw only the evil potential of technologies that also have a vast capacity for enhancing human freedom and security. Any list of the momentous developments already realized or in train would include the following:
1. The accumulation of enormous computer-generated data bases that can be made generally accessible at moderate cost to persons in every part of the globe.
2. The capacity to reproduce documents with perfect accuracy at very low cost on equipment that requires no more space than a desk top.
3. The capacity - resulting from the development of mini-computers, sophisticated software and laser printers that can fit into a single room, coupled with the accessibility of data - to publish newspapers or magazines with high-quality print and sophisticated graphics at a cost which makes it possible for virtually any member of the middle classes in affluent countries to enter the field, albeit, with rare exceptions, only in a very restricted geographic area (where intimate knowledge and locally attractive eccentricity of view can compete against public-and private-sector giants).
4. The capacity to deliver television programmes from a source located anywhere on the globe to receivers in any other part of the globe.
5. The capacity covertly to record telephone conversations, and face-to-face conversations both in public and private places.
6. The capacity for covert surveillance at the micro level of individuals on foot or in cars or of activities of every sort being carried out all over a targeted country or countries. The related capacity to map a country's resource potential and to monitor changes in ecology.
Whether, on balance, these developments will enhance human welfare and widen the realm of individual freedom is problematical. That many governments, including to some degree democratic ones, see serious risks to public order and societal health from their eroding control over the means of communication, particularly the mass media, is evident. One example among many: on 21September 1987, Prime Minister Margaret Thatcher of the United Kingdom presided over a five-hour meeting of ministers and television executives to discuss what British viewers should be allowed to see when the number of available channels expands from the present four to the anticipated 60 in 1995. One of the participants said after the meeting that: "The government wants as much com petition as possible against a background of maintaining standards."40 "Translated into American," one American commentator subsequently wrote, "that means: 'We accept the inevitability of uncontrolled satellite and cable broadcasting, but we will do whatever we can to stop the game shows, the fictional history of docudramas, the toy advertising, the violence, the pornography that are allowed in the United States."'41
As some governments in the West worry about the loss of control, many private citizens worry about an excess of control, first of information and then of people as a result of the government's increased means for monitoring and recording their behaviour. The tug of war is particularly evident in the United States where, unlike most of Western Europe, there is a powerful tradition at the national and, even more, at the state level of openness in government. The public is perceived as having the right not only to know what decisions are reached but to be privy to the decision-making process. One manifestation of the conflicting values and pressures is the Reagan Administration's efforts to limit access even to unclassified data bases and to narrow the reach of the Freedom of Information Act. Since its adoption that Act had allowed private citizens and organizations to discover that they had been under surveillance by security agencies at one point or another, agencies acting without judicial authorization.
At stake here, of course, is the value broadly characterized as "privacy, " a value that occupies one of the central places in that conception of fundamental human tights native to the capitalist democracies of the West. One threat to it is the ease with which governments may dip into private-sector data banks. In the course of a recent public television series commemorating the Bicentennial of the US Constitution, Mr Ira Glasser, Executive Director of the American Civil Liberties Union, summed up the problem as follows:
In the eighteenth century, everybody's personal papers were in their house or in their place of business Well, most of our personal papers are not at our houses anymore or our places of business. They're on computer disks. They're in the custody of third parties - banks, Insurance companies, medical insurance, your employer.
If you want to find out something about somebody, just look at their cancelled checks and their credit card receipts. Now if you kept those at home the government couldn't search. But because someone else is keeping them, the government can go and get them merely by subpoena. You don't know about it and they don't need a warrant. The Supreme Court has been asked to extend the Fourth Amendment protections (prohibiting search and seizure without judicial warrant) to third party custodians of your personal papers, but it has declined to do so on the grounds that the Fourth Amendment only protects your house and your place of business.
So now we have a Fourth Amendment which continues to protect the places where the information used to be kept, but the information has flown the coop. It isn't there any more. All that information is out there floating. And anybody can plug into it. It was one thing when all that information was fragmentary and it got lost. But now the information is persistent. It persists over time and it persists over space. It doesn't go away whether it's accurate or not, it doesn't go away whether it's relevant or not. And it follows you everywhere. And even if it's on a lot of different computers, if you could link those computers up with something like a social security number, all of a sudden overnight you have a national dossier.42
Even if the government does not have access, even if the data remains in private hands, given the extent to which each individual is now dependent for his or her survival and ability to serve as a functioning member of society on huge privately controlled enterprises, the new technology's capacity to diminish human freedom is impressive. Some of the principal risks to the individual's capacity to defend against arbitrary deprivation of very important interests by private enterprises are elaborated in a 1987 article by Spiros Simitis, a German professor of civil and labour law and the Data Protection Commissioner of the State of Hesse in the Federal Republic.43 He begins by stating that "the boundary between a permissible exchange of facts about people, necessary to avoid misrepresentation, and an impermissible intrusion and surveillance is entirely unclear."44 He then proceeds to offer examples of information-gathering with ambivalent implications.
One example is that of "the transparent patient." It arises out of each country's efforts to contain the exploding costs of health-care delivery. Increasingly, individuals and the services provided to them are measured against computer-designed models. In the Federal Republic of Germany, in cases where the number or type or cost of services exceeds the model, the patients' deviations from the optimum are brought to their attention and they are asked to discuss with a doctor named by the insurance company ways and means of reducing future costs. Also in the FRG, the social security agencies have developed the profile of an ideal cost-saving patient that has led in turn to a form that must be presented to the doctor at the beginning of each consultation. "The form explicitly requires that the doctor confine her services to 'strictly necessary' treatments and enumerates therapeutic measures as well as certain medication that cannot be prescribed without prior approval of the agency."45 It follows that intimate details of treatment must be shared with civil servants not bound to confidentiality by the Hippocratic oath and the deeply rooted tradition and intense peer pressure associated with it. But the more comprehensive problem is this, that
Such data use results in an entirely transparent patient who becomes the object of a policy that deliberately employs all available information on her habits and activities in order to adapt her to insurers' expectations. The patient is seen and treated as the sum of constantly increasing, strictly formalized, and carefully recorded data that can, at any moment, be combined and compared according to criteria fixed by insurers (whether public or private). Hence, as automated processing is perfected, the patient's position Is increasingly determined by a computer-made and insurer-approved, secondhand identity.46
Similar developments can be seen in the public sector. Professor Simitis cites a research programme, designed by the Health Council of Oslo, the purpose of which is to collect data about young children that will enable the authorities to identify those children with psychological problems or syndromes that could lead to "antisocial behaviour" as they grow older.47 He also cites in this connection the recent attempt by the city of Bremen, Federal Republic of Germany, to establish an automatic file of children exhibiting obviously "odd behaviour."
Thefts, excessive aggressiveness, or repeated lying the identifying signs. Once again, the aim was therapeutic: To treat and to inhibit "dangerous" behaviour and thus to guide the child to adapt better to societal expectations.48
In addition to having their privacy invaded, individuals are increasingly threatened with loss of material benefits and of the presumption of innocence in criminal proceedings, all as a consequence of deviation from computer-generated expectations of proper behaviour. Sweden now polices its tax and social security programmes by using automated processing to define "suspect populations" and to trigger follow-ups. To illustrate the consequences, Simitis recalls a "'fishing expedition' aimed at detecting fraudulent housing aid recipients. . ." As the result of matching information from two different sets of records, the government suspected some one thousand persons of having committed fraud. Prosecutions ensued and some persons were quickly convicted. "Ultimately, however, the government had to admit that only one person out of the one thousand suspects was really guilty."49
In the American state of Massachusetts, the Medicaid benefits of an eIderly woman living in a nursing home were terminated "because, according to a computer match of welfare rolls and bank accounts, her account exceeded the Medicaid asset limit. The account contained, however, a certificate of deposit in trust that was intended to cover her funeral expenses. The computer failed to recognize that under federal regulations the certificate of deposit was an exempt resource not to be included in the calculation of her assets for purposes of Medicaid."50
For the billions of desperate people scratching a bare living in the slums and parched fields of the third world, some of the human rights issues generated in the first world by the inexorable advance of science and its technological offspring may seem not only remote but grotesquely trivial. Yet can it not be said that the claims to privacy of comfortable middle-class people in affluent societies, no less than the claims to food and land and shelter of impoverished billions in third-world states, derive their power from a shared respect for each individual as a unique and marvellous being, a moral equal of every other person on earth? We are all partners in the tragic dance to the music of time. To disparage anyone's claim to be a bearer of rights commanding respect and protection is to deny that universal fraternity without which all the covenants and conventions and declarations of the modem human rights movement would be like shallow marks in the sands of a wind-whipped globe.