February 19, 2008

When I started these fillips, I was aware that I courted severe misinterpretations in advocating privacy rights. My domain of expertise relates to data rights, not to Roe v. Wade (1). I have used the term eprivacy to stress the distinction.

Almost two years have elapsed and my earlier position seems no longer justified. In our Western Society, the border between persons and personal data is crumbling. Persons run the risk to be reduced to data while the existence of personal data presupposes the existence of a person (2).

Does it mean I have suddenly become an expert in bioethics? What about other data privacy "experts"? I shudder at the thought so-called privacy policy writers would reuse their templates to craft ethics statements for healthcare providers. "We promise to do absolutely no harm to you... except when it benefits our corporate affiliates and research partners. We further reserve the right to update this policy at any time."

If my expertise has not changed then, what has? The urgency to recognize and articulate the links between data privacy and personal privacy. Within this united area, laws must be consistent lest they become arbitrary. Three points sum up the experience gained from studying data rights.

First current laws are made obsolete by recent technical advances. Who would doubt the influence of imaging technologies in the recent decision of the French Superior Court to allow fetuses to receive posthumous civil recognition, reported by Delphine de Mallevoüe (*)? Wasn't her article illustrated by the echography of a 20 week old fetus? In addressing the need for new laws, a task both necessary and difficult, one should ask two questions. "What current balance has been upset by technological change" and "what new balance" to seek.

Whether in information processing or biotechnology, one major effect of new technology is to create the potential for assigning large economic gains to third parties from the exploitation of powerless sources. Nothing can be more disruptive than such economic imbalances. Three centuries ago African populations were mined for their labor (3). Today Internet users are mined for their data and embryos for their stem-cells.

Second one must understand how laws are made in a pronaocracy. As privacy includes the ownership of valuable rights, interested third parties will push the legislator either to deny any economic value to the resource extracted from the owner, to accept the owner's forced consent at face value or to deny legal existence to the owner altogether. If an embryo has no value, gives consent by default or is not a living human being, where is the harm?

Third privacy leads inevitably to issues about identity. Can law consistently avoid defining what is a living human being, however charged this question may be? It is for other experts to debate its moral and scientific implications. See for instance the contributions of Emmanuel Hirsch (**), apropos the French court decision above mentioned, and William Saletan (***), in his review of a book by Robert P. George and Christopher Tollefsen (4).

For my part, I reserve the right to consider cloning from the perspective of copyright law.

Philippe Coueignoux

• (*) ....... Etat civil pour le foetus: la polémique s'installe, by Delphine de Mallevoüe (Le Figaro) - February 8, 2008
• (**) .... La dignité humaine ne se quantifie pas de manière scientifique, by Emmanuel Hirsch (Le Figaro) - February 12, 2008
• (***) .. Little Children, by William Saletan (New-York Times) - February 10, 2008
• (1) see Roe v. Wade in wikipedia.
• (2) for a learned discussion, see privacy in the Stanford Encyclopedia of Philosophy.
• (3) see the Atlantic slave trade in wikipedia.
• (4) Embryo, A Defense of Human Life, by Robert P. George and Christopher Tollefsen (Doubleday) - 2008, 242pages.