Cross-posted from The Sacramento Bee.

Technology matters. It affects every aspect of our lives, sometimes becoming pervasive before we are even aware of it and have a chance to consent - or not. Those in charge of governing technology must adapt when innovation evolves faster than lawmaking and ensure that the public has a role.

Two seemingly unrelated headlines illustrate how new technology - widely and stealthily - has permeated our society: Edward Snowden's revelations of massive electronic surveillance and Washington state's failed ballot initiative to mandate labeling of genetically modified foods.

The NSA surveillance activities revealed by Snowden shocked the American public and the world. We live in a world of drones and hackers, a world where extensive surveillance is widely acknowledged as possible. But the reach of NSA surveillance, the agency's lack of restraint and the collusion of industry in furthering its activities still have stunned many Americans.

Voters in Washington state in November rejected an initiative that would have mandated labeling of foods containing genetically modified organisms or GMOs, just as California voters did a year earlier. These measures failed despite consistent survey results reporting that Americans overwhelmingly favor such labeling.

Some worry that these foods may not be safe; others find the idea of consuming such foods downright frightening. If labeling were required, shoppers would learn that most processed foods contain GMOs. They might be shocked to discover that 90 percent of the corn, soybeans and canola planted in this country is genetically modified.

The public might then ask, "Why didn't we know about this?" It's a question that can apply to many of the emerging technologies that are transforming our lives and the world around us.

Nanotechnology is generating new materials, new medicines and consumer products with new functionalities. Artificial intelligence is yielding an array of advances ranging from driverless cars to robotic surgeons. Synthetic biology is promising to enable the design of new species or the resurrection of extinct ones. And geoengineering, a set of technologically driven and unconventional proposals for countering the effects of climate change, is receiving growing attention in the wake of our collective failure to reduce greenhouse gas emissions.

Researchers have good reasons for pursuing such scientific knowledge. But societies often promote the widespread adoption of a promising new technology without seriously considering its broader consequences for society, individuals or the environment.

The uncertainty regarding the course of technological development and the consequences of technology adoption creates a "dilemma of technology control": When a technology is in its earliest phases, there is scant information about its consequences; however, once such information does become available, the technology has become too well-established to be adequately controlled.

Often, law struggles to keep pace with emerging technologies - a troubling reality when the harms that may result from using a technology are serious and irreversible.

Is the dilemma unresolvable? Not if society and governance institutions devote attention and resources to the problem.

In the case of GMOs, for example, carrying out studies of long-term health effects from GMO consumption would reduce public unease. Transparency in using the technology and genuine consideration of public concerns would also help.

Ultimately, laws must treat technology, health and the environment as fundamentally related. We must reorient lawmaking in a way that acknowledges the transformative power of technology, recognizes the consequences of its use, and incorporates public input and awareness throughout the technology development process. While we may not be able to quantify the risks or identify all the consequences, we often have a sense of the potential hazards and can try to learn whether those hazards are real.

Emerging technologies pose questions regarding what kind of world we want to live in and what kind of people we want to be. A great democracy wrestles with such issues openly and continuously.

Professor Albert Lin has written an exciting new book. Here is the recent media announcement:

From Climate Change to GMOs, UC Davis's Albert Lin Calls for Public Input in Laws Governing New Technologies

November 19, 2013

Life-changing and controversial technologies such as synthetic biology, nanotechnology, artificial intelligence, and geoengineering are evolving every day. While scientific advances promise to address serious problems and transform our lives, they also bring health and environmental risks and unanticipated effects; examples include genetically modified foods and climate change.

Can the law keep up with emerging technologies?

In his important new book "Prometheus Reimagined: Technology, Environment, and Law in the Twenty-first Century" (Released November 2013), author Albert Lin, a Professor of Law at the University of California, Davis, asks how governance institutions should adapt when innovation evolves faster than lawmaking and calls for a more democratic approach to technology regulation.

"Societies often promote the widespread adoption of a promising new technology without seriously considering its broader consequences for society, individuals, or the environment," Lin writes. "This approach fails to envision future developments, anticipate adverse effects, or reduce uncertainties. Such an approach is particularly troubling if the harms that may result from using a technology are serious and irreversible."

Lin argues that laws must treat technology, health, and the environment as fundamentally related. He presents new ideas for reorienting lawmaking in a way that acknowledges the transformative power of technology, recognizes the consequences of its use, and incorporates public input and awareness in technology management.

"What this book contributes is a detailed look at potential governance mechanisms in a historical perspective... and some good policy ideas for generating new governance."
-David Winickoff, University of California, Berkeley, College of Natural Resources

"Professor Lin... develops reform recommendations to facilitate informed democratic value choices about how to address... risks before, rather than after, they create serious harm."
-David M. Friesen, Syracuse University College of Law

About the author: Albert Lin is a Professor of Law at UC Davis School of Law, where he specializes in environmental and natural resources law. His research interests include toxic torts and the relationship between technology, the environment, and law. Prior to joining the UC Davis faculty, Professor Lin was a trial attorney for the Environment and Natural Resources Division of the U.S. Department of Justice.

Lin is available to discuss "Prometheus Reimagined: Technology, Environment, and Law in the Twenty-first Century," published by University of Michigan Press.

The Society of American Law Teachers has released the following statement regarding the naming of Keith Aoki, our colleague who passed away last month, receipient of its 2012 Great Teacher Award.

"The Board of Governors of the Society of American Law Teachers (SALT) announces with pride and sadness that it will be honoring Professor Keith Aoki posthumously with its 2012 SALT Great Teacher Award at the Saturday, January 7, 2012 SALT Annual Dinner in conjunction with the AALS annual meeting in Washington, D.C.

"A talented, creative, committed professor, teacher, friend, colleague, musician, artist, husband, and father, Keith has left his mark on the legal academy and in the hearts of students and colleagues alike.

"Keith’s educational path reflected the fact that his legal analysis and scholarship were intimately connected to his love of art and music.  That made Keith into a risk-taking intellectual who was passionate about ideas and justice.  Keith earned a B.F.A. degree from Wayne State, M.A. in Fine Arts from Hunter College, J.D. from Harvard Law School, and LL.M. from the University of Wisconsin Law School. At the time of his
death, Keith was a professor at the University of California at Davis School of Law, having come from the University of Oregon School of Law, where he taught from 1993 to 2006. He also taught at Lewis & Clark, Columbia, and Boston College.

"He brought his performance art into the classroom, delighting and unnerving students, challenging their assumptions and expectations.  He made generations of pompous law professors and law school students laugh at themselves with his legal comics.

"Reviewing the comments posted by those who knew Keith after his untimely death was announced, we know that he was also a teacher of teachers, mentoring colleagues through the first years of classroom preparation, urging them to be brave in their scholarship, and reminding them that their vulnerability wasn’t such a bad thing."Keith Aoki was a generous spirit, and his teaching, scholarship, and service were the creative products of that generosity, intelligence, compassion, and determination to make the world a better place."

Read tributes to Professor Aoki here, here and here.  A memorial service to honor Professor Aoki will take place at the law school on Thursday, May 26, at 3 pm.

For the last thirty years, the Bayh-Dole Act has framed the relationship between US universities ad industry, promoting the flow of publicly-funded research toward private-sector development.  In doing so it has also fostered, or at least epitomized, the university’s turn to intensive intellectual property production, protection, and licensing.  It has been both hailed as a much-needed modernization of ivory tower culture and attacked for its corrupting effects on the university’s commitment to open knowledge.  Our conference moves beyond predictable ideological pronouncements to discuss the complex empirical evidence about the success and shortcomings of Bayh-Dole, and the equally complex challenge of how to define “success” and “shortcoming” in the context of the university’s mission. 

PROGRAM:

FRIDAY, April 29
(Buelher Alumni & Visitors Center, AGR Room)

2:15–2:30

Welcome

Dean Ron Mangun, UC Davis Division of Social Sciences

Dear Kevin Johnson, UC Davis School of Law

2:30–4:00

Is University Patenting Technology-Specific? 

Speaker: Dan Burk (UC Irvine) 

Comments:  Pamela Samuelson (UC Berkeley); Mario Biagioli (UC Davis)

Response:  Mark Lemley (Stanford)

4:15–5:45

Managing University Intellectual Property in the Public Interest

Speaker: Alan Bennett (UC Davis)

Exporting Bayh-Dole: Identifying the Institutional Connections in Patent Commercialization

Speaker: Shubha Ghosh (U Wisconsin, Madison)

Comment: Anupam Chander (UC Davis)

5:45-6:45

Reception and Book Party

Alain Pottage & Brad Sherman, Figures of Invention, Oxford University Press, 2010

SATURDAY April 30
(King Hall 1001, Kalmanovitz Appellate Courtroom)

9:00–10:30

Accountability and Government Rights: Agency Implementation of the Bayh-Dole

Speaker: Arti Rai (Duke)

Bayh-Dole and Entrepreneurship Reconsidered: University Versus Inventor Ownership

Speaker: Martin Kenney (UC Davis)

Comment: Keith Aoki (UC Davis)

10:45-12:15

Transcending the Tacit Dimension: Markets, Relationships, and Organizations in Technology Transfer

Speaker: Peter Lee (UC Davis)

Bayh-Dole, Research Tools, and the Scientific Enterprise

Speaker: David Winickoff (UC Berkeley)

Working Knowledge:  The University Envisions Innovation

Spaker: Brian Kahin (CCIA/Harvard)

Comment: Andrew Hargadon (UC Davis)

1:45–3:15

The Patenting of University-Based Research in Australia

Speaker: Brad Sherman (Griffith University, Brisbane)

Federal Funding and Innovations in Bionanotechnology: US-China Comparisons

Speaker: Tim Lenoir (Duke)

Comment: Madhavi Sunder (UC Davis)

3:30–5:00

Synthetic biology: Reconstructing the Public in the Wake of Bayh-Dole

Speaker: Alain Pottage (London School of Economics)

The Digital Commons and Bayh-Dole

Speaker: John Wilbanks (Creative Commons)

Comment: Joseph Dumit (UC Davis)

5:00–5:15

Concluding Remarks

Speaker: Pamela Samuelson (UC Berkeley)

REGISTRATION IS FREE BUT SPACE IS LIMITED.  Please reserve your seat by following this link: www.tinyurl.com/BayhDole30.

Information about the event including directions can be found at innovation.ucdavis.edu/events/bayh-dole-30-mapping-the-future-of-university-patenting. If you have other questions or require assistance please email Charles Adelsheim.

The event is sponsored by the Center for Science & Innovation Studies, UC Davis Division of Social Sciences, UC Davis School of Law, King Hall Annual Fund, Science and Technology Studies Program.

Download the flyer.

DNA rendering by ynse

Even if DNA evidence proves crucial to cracking to case of a serial killer, the use of such evidence is outpacing laws regulating it.

DNA evidence was undeniably the key to the arrest and charging of Lonnie David Franklin Jr., believed to be the Grim Sleeper responsible for a string of slayings in Los Angeles between 1985 and 2007. Many will cite this use of DNA evidence in a high-profile serial murder case as one more reason to increase reliance on this important investigative tool. But in fact it's precisely at a moment like this when an investigative triumph can blind us to the dangers of expanding genetic surveillance.

There were actually three different uses of DNA evidence in the Grim Sleeper investigation that we should be concerned about. They all turn basic assumptions about our criminal justice system on their heads. The first is the use of familial DNA searches. Most of the time, investigators search state DNA databases to find a complete match linking a particular person's DNA profile to crime scene evidence. Familial matches are different. A "hit" in the database establishes definitively that the person in the database is not the wanted suspect, but suggests that it is one of his or her relatives.

Why is this problematic? Keep in mind that in usual police "searches," there must be individualized probable cause for suspicion, as required by the 4th Amendment. With familial searches, the only reason the police identify their suspect is because he is genetically related to someone in a DNA database. If that sounds like guilt by association, it is. Why should the mere inclusion of one of your family members in a DNA database mean that you might be a target of an investigation one day?

The second investigative technique used in the Grim Sleeper investigation was the use of "abandoned" or "discarded" DNA. We all leave DNA on used coffee cups, smoked cigarettes and many other items on a daily basis. After the police turned their focus to Franklin, undercover police followed him until he left some of his DNA on a piece of pizza as well as silverware and a glass after a meal out.

Few rules govern the circumstances in which police can collect this involuntarily shed DNA. Police typically defend the practice by saying it produces results. Of course, when successful matches are found, the unrestrained collection of abandoned DNA sounds defensible. But what about all of the hunches that police might like to pursue in this way? Have we all silently consented to giving up our discarded DNA to the police?

The third use of DNA in the investigation is unlikely to receive much fanfare; it wasn't successful. Yet it is equally dangerous to civil liberties. Two years ago, LAPD vice officers arrested a number of suspected johns not as part of a crackdown on prostitution but rather for the purpose of collecting their DNA. (Many of the Grim Sleeper's victims were prostitutes.) Such a technique is known as a DNA dragnet. As of January 2009, Proposition 69 allows the state to collect DNA not just from those convicted of felonies but also from all people who have simply been arrested on suspicion of committing felonies. Atty. Gen. Jerry Brown's formal approval of familial searches is still limited to searching profiles of convicted felons in special cases, but it's not hard to imagine an expansion to all cases regardless of severity, and to arrestee profiles as well.

There's no doubt that DNA evidence gives the police an important tool. Without it, the Grim Sleeper case would probably be yet another unsolved case. The trouble is that we are rushing forward with these uses of DNA evidence with little consideration of the ever-increasing scope of genetic surveillance over our citizens. Many states that have not formalized their policies in these areas have taken note of what the police did in this case. What matters isn't just that this particular fish was caught; it's the ever-widening net over us.

Elizabeth Joh, a professor at the UC Davis School of Law, has written widely about DNA evidence, undercover policing and police privatization.

Cross-posted from the Los Angeles Times.

Last November, the Supreme Court heard oral argument in Bilski v. Kappos, a patent case with significant implications. At issue in Bilski is whether a method for hedging risks in commodities trading comprises patentable subject matter. Many have criticized the prospect of granting exclusive rights on processes so divorced from traditional conceptions of “technology.” Others, however, contend that in today’s information economy, such valuable yet intangible innovations should be eligible for patent protection.

The patent community is now eagerly awaiting the Supreme Court’s resolution of the case, and much hangs in the balance. Commentators argue that Bilski could affect the patentability of everything from business methods and software to diagnostic tests and medical correlations. The case has attracted dozens of amicus briefs from parties such as the ACLU, American Express, Microsoft, IBM, and Yahoo!.

I offer no predictions on the Supreme Court’s substantive resolution of Bilski, but I do wish to highlight one methodological point. In prior proceedings, the Federal Circuit had denied the patentability of this invention based on its newly-articulated “machine or transformation test.” According to this test, a process is only eligible for patenting if 1) it is tied to a particular machine or 2) it transforms a particular article into a different state or thing. In many ways, this test reflects the Federal Circuit’s well-recognized preference for formalistic patent doctrine. In a variety of areas, the Federal Circuit has crafted bright-line rules that limit inquiries to a few core questions and discourage consideration of “extraneous” context.

Among other functions, such formalism partially shields judges from technologically difficult inquiries about patented inventions. For example, the Federal Circuit’s historic approach to patent infringement remedies followed a simple syllogism: if infringement, then injunction. According to this formalistic framework, courts would not consider the “value” of a patented technology or its social importance in determining whether to grant an injunction; they would issue such relief almost as a matter of course.

While the Federal Circuit favors formalistic rules, the Supreme Court’s recent forays into patent law reflect a preference for holistic standards. In areas as diverse as prosecution history estoppel, nonobviousness, and remedies, the Court has produced doctrine compelling judges to delve deeper into inventions and their technological context.

These methodological observations add another layer of complexity to Bilski. Substantively, the patentability of “intangible” processes has significant implications for the financial services, information technology, and biomedical industries. However, whether the Supreme Court answers this question with a holistic standard or a set of bright-line rules may significantly impact the administration of patent law.

Among other effects, the Supreme Court’s preference for holistic standards invites greater judicial engagement with technology and its context. In the realm of cutting-edge innovations, such contextual engagement can significantly increase the difficulty of adjudication. (Indeed, there is some indication that lower courts have struggled to apply the Court’s recent holistic standards.) Thus, while observers are eagerly awaiting the Supreme Court's substantive resolution of Bilski, the form of the Court's ruling may matter a great deal as well.