The Panopticon Singularity

By Charles Stross [with NOTES and additions from my own research to update]

http://www.antipope.org/charlie/rant/panopticon-essay.html

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Author’s note: This essay was originally commissioned by Alex Steffen for the projected 111st issue of Whole Earth Review, which was to focus on the Singularity. Sadly, WER effectively ceased publication with issue 110, and (the shorter, WER-edited version of) this article is not among the content you can find on their web site. I’m therefore releasing this draft.

I originally wrote this in early 2002. I have not updated the content significantly — I think it provides a useful historical context — but have checked and, where necessary, modified the URLs. Where I have made additions to the text, they are noted.

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The 18th century utopian philosopher Jeremy Bentham’s panopticon was a prison; a circle of cells with windows facing inwards, towards a tower, wherein jailers could look out and inspect the prisoners at any time, unseen by their subjects.

Though originally proposed as a humane experiment in penal reform in 1785, Bentham’s idea has eerie resonances today. One of the risks of the technologies that may give rise to a singularity is that they may also permit the construction of a Panopticon society — a police state characterised by omniscient surveillance and mechanical law enforcement.

Note that I am not using the term “panopticon singularity” in the same sense as Vinge’s Singularity (which describes the emergence of strongly superhuman intelligence through either artificial intelligence breakthroughs or progress in augmenting human intelligence), but in a new sense: the emergence of a situation in which human behaviour is deterministically governed by processes outside human control. (To give an example: currently it is illegal to smoke cannabis, but many people do so. After a panopticon singularity, it will not only be illegal but impossible.) The development of a panopticon singularity does not preclude the development of a Vingean singularity; indeed, one may potentiate (or suppress) the other. I would also like to note that the idea has been discussed in fictional form by Vinge. [A Deepness in the Sky - a Zones of Thought book]

Moore’s Law states that the price of integrated circuitry falls exponentially over time. The tools of surveillance today are based on integrated circuits: unlike the grim secret policemen of the 20th century’s totalitarian regimes they’re getting cheaper, so that an intelligence agency with a fixed budget can hope to expand the breadth of its surveillance rapidly. In the wake of the events of September 11th, 2001, the inevitable calls for something to be done have segued into criticism of the west’s intelligence apparatus: and like all bureaucratic agencies, their response to a failure is to redouble their efforts in the same direction as before. (If at first you don’t succeed, try harder.)

It is worth noting that while the effectiveness of human-based surveillance organizations is dependent on the number of people involved — and indeed may grow more slowly than the work force, due to the overheads of coordinating and administering the organization — systems of mechanised surveillance may well increase in efficiency as a power function of the number of deployed monitoring points. (For example: if you attempt to monitor a single email server, you can only sample the traffic from those users whose correspondence flows through it, but if you can monitor the mail servers of the largest ISPs you can monitor virtually everything without needing to monitor all the email client systems. Almost all traffic flows between two mail servers, and most traffic flows through just a few major ISPs at some point.) Moreover, it may be possible to expand an automated surveillance network indefinitely by simply adding machines, whereas it is difficult to expand a human organization beyond a certain point without having knock-on effects on the macroeconomic scale (e.g. by sucking up a significant proportion of the labour force).

Here’s a shopping-list of ten technologies for the police state of the next decade, and estimates of when they’ll be available. Of necessity, the emphasis is on the UK — but it could happen where you live, too: and the prognosis for the next twenty years is much scarier.

Smart cameras

Availability: today.

The UK leads the world in closed circuit surveillance of public places, with over two [2004: four] million cameras watching sixty million people. Cameras are cheaper than cops, and act as a force multiplier, letting one officer watch dozens of locations. They can see in the dark, too. But today’s cameras are limited. The panopticon state will want cheaper cameras: powered by solar panels and networked using high-bandwidth wireless technology so that they can be installed easily, small so that they’re unobtrusive, and equipped with on-board image analysis software. A pilot study in the London borough of Lambeth is already using face recognition software running on computers monitoring the camera network to alert officers when known troublemakers appear on the streets. Tomorrow’s smart cameras will ignore boring scenes and focus on locations where suspicious activities are occuring.

(Experience suggests that cameras don’t reduce crime — they just move it to places where there’s no surveillance, or displace it into types of crime that aren’t readily visible. So the logical response of the crime-fighting bureaucracy is to install more cameras …)

NOTE:

Here is information from the site of the leading manufacturer of the software that deals with the problems of CCTV:

First:

The CCTV Problem

“Closed Circuit Television cameras (CCTV) have always been crucial in supplying surveillance and security in the fight against crime.

However, all too often, CCTV has been reduced to a retrospective, forensic role; examining what went wrong and helping investigators in the aftermath of a crime.

The efficiency of CCTV systems is further blighted by the inability of the operator to pick up all the information that is being displayed.

Studies show, “After 12 minutes of continuous video monitoring an operator will often miss up to 45% of screen activity. After 22 minutes of viewing, up to 95% is overlooked.” (Security Oz, Oct / Nov 2002)” http://www.ipsotek.com/html/cctv.php

THEN:

“The Ipsotek Visual Intelligence Suite™ is the premier software package for pro-active surveillance of high-risk environments.

The Visual Intelligence Suite™ features flexible behavioural algorithms which are used for a variety of applications where human operators struggle to keep track of risks and threats as they arise:

• Border Security
• Suspect Packages
• Counter-terrorism
• Abandoned Vehicles
• Site Security
• ATM Surfing / PIN theft
• Prostitution & Kerb Crawling
• Graffiti
• Vandalism
• Abnormal Motion of Cars/People
• Muggings
• Anti-Social Behaviour
• Unauthorised Plant Removal
• Unauthorised Maintenance
• Disaster Recovery Site Protection
• Art Galleries & High Value Retail Items
• Critical Infrastructure Protection
• Platform Suicide
• Overcrowding, Vector Analysis
• Retail Fraud
• Iconic Buildings
• Trackside Intrusion

Please follow the links for further analysis of intrusion, suspect packages, loitering & overcrowding. – (so following them leads to:)

Intrusion

“Many competitors offer simple intrusion alerts based on motion detection, but the VI suite goes much further. Multiple areas of interest can be set within a single field-of-view and can be customised according to their sensitivity or interest.

Again, the instant replay feature allows the attendant security personnel to review and appropriate the correct response at the touch of a button.

Continual refinement of the video algorithms and an understanding of the depth of perception has virtually eliminated false positives from birds, paper bags, stray dogs or any other unwanted foreign intrusion.”

Suspect Packages

“Ipsotek’s Visual Intelligence Platform has unrivalled abandoned package detection rates due to the background learning nature of the software

It can recognise abandoned packages, secreted away under benches or partially hidden behind pillars, regardless of the levels of footfall interference. The instant alert replay feature allows the attendant operator to identify the culprit and take appropriate action, at the touch of a screen.

The ability to recognise stationary objects that are not part of the background can also be used to highlight collapsed or unconscious persons as well as illegally parked vehicles. This is just one example of how the flexibility inherent in Ipsotek’s algorithms allows the software to focus on the problems that have been identified.”

Loitering

“Loitering is the term used to describe a person standing around without any obvious purpose. This behaviour is often displayed by prostitutes, drug dealers, muggers ad PIN surfers ( card fraud experts)

There is also strong evidence to suggest that those intent on committing suicide by jumping onto the subway tracks will wait until several trains have passed before finally plucking up courage to commit the act.

The Visual Intelligence Platform™ can recognise loitering regardless of changeable ambient light conditions or overcrowding.”

Overcrowding / Congestion

“Overcrowding can be a serious threat to life. With sports stadiums boasting ever larger capacities and the continued popularity and growth of festivals, the ability to monitor and control crowds is becoming ever more crucial if we are to avoid a repeat occurrence of some of the tragic disasters of the past.

Ipsotek’s Vector Analysis algorithms can track individual movements within the crowded scenes, displaying them motion trends and thereby allowing operators to predicts where pressure will be greatest and react accordingly.

Vector Analysis also highlights discrepancies from the expected motion trends. Ticket touts and pickpockets thrive in dense, moving crowds; working against the flow, allowing them to gain maximum exposure to others in the shortest possible amount of time.”

NOW, back to the Ipsotek site:

“The Visual Intelligence Platform™ detects unusual activity by recognising behavioural patterns pre-programmed into the computer’s memory. Once any of the selected behaviour pattern is detected, the computer notifies CCTV operators, staff or management to the potential threat using visual and audio alerts. The technology then instantly reverses and replays the incident at the touch of a screen for users to examine.

It is at the discretion of the attendant operator to then take the appropriate action.

Unlike many other ‘real-time’ solutions offered on the market, Ipsotek can work equally effectively under ambient light conditions. Thus Ipsotek software is ideally suited to application in both indoor and outdoor environments, regardless of inclement weather or natural light variations.”

See demos at: http://www.ipsotek.com/html/demos.php

http://www.ipsotek.com/html/ipsotek.php

NOTE:

“British citizens live under the most intense surveillance on this planet. By the millennium’s dawn, there was one CCTV camera for every 14 people in the UK; work in a major city, and it’s likely you’ll be filmed at least 300 times per day. In the face of flawed technology and political duplicity, Gordon Brown’s cabinet is pressing ahead with plans to introduce identity cards which will be compulsory in all but name. This country already has the largest DNA database in the world (four million files) and our personal telephone records could soon be available to more than 650 governmental bodies. Prudence or paranoia? Novacon 37’s programme stared into Today, recalled the Past and extrapolated the Britain of Tomorrow.” http://www.novacon37.org.uk/

Peer to peer surveillance networks

Availability: 1-5 years.

Today’s camera networks are hard-wired and static. But cameras and wireless technology are already converging in the shape of smartphones. Soon, surveillance cameras will take on much of the monitoring tasks that today require Police control centres: using gait analysis and face recognition to pick up suspects, handing off surveillance between cameras as suspects move around, using other cameras as wireless routers to avoid network congestion and dead zones. The ability to tap into home webcams, private security cameras, and Neighbourhood Watch schemes will extend coverage out of public spaces and into the private realm. Many British cities already require retail establishments to install CCTV: the Regulation of Investigatory Powers Act (2001) gives the Police the right to demand access to electronic data — including camera feeds. Ultimately the panopticon society needs cameras to be as common as street lights.

(Looking on the bright side: London Transport is experimenting with smart cameras that can identify potential suicides on underground train platforms by their movement patterns, which differ from those of commuters. So p2p surveillance cameras will help the trains run on time …)

NOTE:

“Camera software, dubbed Cromatica, is being developed at London’s Kingston University to help improve security on public transport systems but it could be used on a wider scale.

It works by detecting differences in the images shown on the screen.

For example, background changes indicate a crowd of people and possible congestion. If there is a lot of movement in the images, it could indicate a fight.”

Preventing suicide

“It could detect unattended bags, people who are loitering or even predict if someone is going to commit suicide by throwing themselves on the track,” said its inventor Dr Sergio Velastin.”

From above link: http://news.bbc.co.uk/1/hi/sci/tech/1953770.stm

See also: http://www.325collective.com/social-control_surveillance_capital.html

AND, lest you think this is purely U.K.:

“All Things Considered, October 26, 2007 · Chicago already has an elaborate network of surveillance cameras to detect crime — 560 cameras with plans to install 100 more.

Now, the city is teaming with IBM to launch what is being billed as the most advanced video security network in the United States: a system that could be programmed to recognize and warn authorities of suspicious behavior, such as a backpack left in a park or the same truck circling a high-rise several times.

IBM’s Roger Rehayem says smart cameras using analytic software can send out alerts for vehicles of certain colors, models and makes. And if a camera is positioned right, it can pick out license plates or even recognize faces….

Chicago officials say they’re not completely sold yet on the smart surveillance technology. They say visual and audio advancements, such as gunshot recognition, just haven’t been perfected enough yet to justify the cost of installing smart surveillance cameras citywide.” http://www.npr.org/templates/story/story.php?storyId=15673544

ALSO:

“Triggered Response

Dec 8, 2005, By Jim McKay

The sound of gunshots in high-crime neighborhoods may or may not move residents to call 911. In some neighborhoods, the sound of gunfire is unfortunately part of the landscape, and when they do call, residents can’t always be sure where the sound came from.
So what if the gunshot automatically triggered a 911 call, and captured video of the shooter? Police in Chicago are hoping to curb gun violence with technology that does just that.
The technology — Smart Sensor Enabled Neural Threat Recognition and Identification (SENTRI) — recognizes the sound of a gunshot within a two-block radius, pinpoints the location of the shot with a surveillance camera, focuses on the location, and in less than 1 second, places a 911 call.
The goal is to use the devices to prevent homicides in areas known for gang activity and gun violence.
Continued Vigilance
Chicago successfully deployed 53 surveillance cameras over the years, and has deployed the gunshot-recognition technology in about one-third of those. The cameras, by themselves, were credited with reducing the city’s 2004 crime rate to its lowest level since 1965 — sexual assault is down 5 percent from the previous year, robbery is down 8 percent, aggravated assault is down 5 percent, and total violent crime is down 7 percent — and it is hoped the SENTRI system will provide even more ammunition against crime.” http://www.govtech.com/gt/97507

AND:

The Sentri Solution: A New Age in Law Enforcement:

“Safety Dynamics specializes in the use of smart sensors for threat recognition and localization. Safety Dynamics is currently selling and supporting a system for law enforcement called SENTRI (Sensor Enabled Neural Threat Recognition and Identification). The system is a breakthrough technology that recognizes gunshots and explosions and sends range and bearing details to cameras which can then locate the source of the event.”http://www.safetydynamics.net/products.html

So, it is here, now.

Gait analysis

Availability: now to 5 years.

Ever since the first slow-motion film footage, it’s been clear that people and animals move their limbs in unique ways — ways that depend on the relative dimensions of the underlying bone structure. Computer recognition of human faces has proven to be difficult and unreliable, and it’s prone to disguise: it’s much harder to change the length of your legs or the way you walk.

Researchers at Imperial College, London, and elsewhere have been working on using gait analysis as a tool for remote biometric identification of individuals, by deriving a unique gait signature from video footage of their movement.

(When gait analysis collides with ubiquitous peer-to-peer smart cameras, expect bank robbers to start wearing long skirts.)

NOTE:

See the paper on “People Detection and Recognition using Gait for Automated Visual Surveillance by Imed Bouchrika and M S Nixon, University of Southampton, UK, presented at The Institute of Engineering and Technology at a conference on Crime and Security in London, 13-14th June, 2006: http://www.cs.nott.ac.uk/~lmg/IETConf_VisualSurveillPeopleRecogGait.pdf

So, this is here, now.

Terahertz radar

Availability: 2-8 years.

Very short wavelength radio waves can be tuned to penetrate some solid and semi-solid surfaces (such as clothing or drywall), and return much higher resolution images than conventional radar. A lot of work is going into domesticating this frequency range, with funding by NIST focussing in particular on developing lightweight short-range radar systems. Terahertz radar can pick up concealed hard objects — such as a gun or a knife worn under outer clothing — at a range of several metres; when it arrives, it’ll provide the panopticon society’s enforcers with something close to Superman’s X-ray vision.

(If they can see through walls, why bother with a search warrant?)

NOTE: See the same conference as above: “Advances in Through Wall Radar for Search, Rescue and Security Applications by Hugh Burchett, Imaging Detection and Tracking Group Leader, Cambridge Consultants, UK, presented at The Institute of Engineering and Technology at a conference on Crime and Security in London, 13-14th June, 2006: http://www.cs.nott.ac.uk/~lmg/IETConf_ThroughWallRadar.pdf

ALSO:

Physical optics modelling of millimetre-wave personnel scanners

Pattern Recognition Letters, Volume 27 , Issue 15 (November 2006),
Special issue on vision for crime detection and prevention, Pages: 1852 – 1862 by Beatriz Grafulla-González, Katia Lebart, and Andrew R. Harvey

“We describe the physical-optics modelling of a millimetre-wave imaging system intended to enable automated detection of threats hidden under clothes. This paper outlines the theoretical basis of the formation of millimetre-wave images and provides the model of the simulated imaging system. Results of simulated images are presented and the validation with real ones is carried out. Finally, we present a brief study of the potential materials to be classified in this system.” abstract http://portal.acm.org/citation.cfm?id=1226520.1226532

ALSO:

“Is it possible to screen everyone that enters­—or exits—your facility, without screeching your operations to a virtual halt? Do you know what your visitors, customers, patrons, constituents and staff may be hiding without stopping and questioning each one? Would you like an easier way to know who to search or where to look?

The BIS-WDS^® GEN 2…

• Provides standoff threat detection without requiring subjects to stand still
• Detects concealed objects in as little as 0.5 second
• Presents a full-body area at the 10-foot optimal focal point
• Does not image specific body details, eliminating personal privacy issues
• Transmits no radiation or energy of any kind
• Integrates seamlessly with ancillary devices, enabling remote operation and event traps

Plus it can be…

• Monitored remotely
• In real time
• Without requiring cooperation
• Without a physical pat down

Can you see what they’re hiding? The BIS-WDS^® GEN 2 Can!” http://www.brijot.com/products/index.php

“See what you’re missing!
Some locations—like airports and other critical transportation hubs, have already invested in security screening technologies like X-ray machines, metal detectors, and added security staff.
But those technologies can’t see explosive materials, liquids and gels, or thick packets of currency. GEN 2 can be integrated into your existing security strategy, and by imaging subjects in motion, it can be used to direct subjects into secondary screening lanes for further investigation, focusing security efforts and eliminating profiling or ineffective random screening.” http://www.brijot.com/applicationsmarketsolutions/airport-and-transportation.php

“Stem the tide of product shrinkage!
Loss prevention personnel will find the GEN 2 invaluable in identifying hidden objects exiting a facility. The system can image metals, wood, electronic devices, bottles of liquor… even fresh or frozen foods! Managers and security personnel can pat down employees virtually without physical contact. Event logging functionality records the detection, providing ideal documentation in the event of an employee termination or theft prosecution.” http://www.brijot.com/applicationsmarketsolutions/lossprevention.php

“Proven Results –
Office of Law Enforcement Technology Commercialization (OLETC)
The GEN 2 system received positive, top-line results from its operational assessment trial of the GEN 2 Object Detection and People Screening System performed by the Office of Law Enforcement Technology Commercialization (OLETC) during a pilot trial at the Baltimore Police Department Headquarters Building. The results confirm state of the art screening technology characterized by advance capabilities beyond those offered by more traditional screening options such as metal detectors.
View full report details click here (link to white paper).” http://www.brijot.com/deploymentsandtrials/deployments.php

This is here now, and has been used in the U.S.

Celldar

Availability: 3-10 years.

Cellphones emit microwave radiation at similar wavelengths to radar systems. Celldar is a passive radar system that listens to the signals reflected by cellphone emitters. When a solid object passes between a transmitter and a cellphone it reduces the signal strength at a receiver.

Celldar was originally designed as a military system that would use reflected cellphone emissions to locate aircraft passing above the protected area. However, by correlating signal strength across a wide number of cellular transceivers (both base stations and phone handsets) in real time it should be possible to build up a picture of what objects are in the vicinity. Subtract the known locations of buildings, and you’ve got a system that can place any inhabited area under radar surveillance — by telephone. (As Rodney King demonstrated, we can already be tracked by cellphone. Now the panopticon society can place us under radar surveillance by phone. And as phones exchange data at ever higher bandwidth, the frequencies will shorten towards the terahertz range. Nude phone calling will take on an entirely different meaning …)

NOTE:
“CELLDAR™

“The CELLDAR™ passive radar system is now under joint development by ourselves and BAE Systems and is the world’s first passive radar to use cell phone basestation signals.” http://www.roke.co.uk/skills/radar/

OR:

“The Missouri Department of Transportation has begun anonymously monitoring cell phone signals as a high-tech way of tracking vehicle speeds and warning motorists of traffic jams. The goal is for motorists to get real-time traffic information over the Internet or road signs.

Privacy concerns have slowed down the Missouri project – the largest of its kind nationally – which was supposed to have been deployed statewide by summer 2006 under a contract with Markham, Canada-based Delcan Corp.” http://www.dailywireless.org/2007/09/21/celldar-monitoring-traffic-via-cell-radiation/

Ubiquitous RFID ‘dust’

Availability: 1-5 years.

Radio Frequency ID chips are used for tagging commercial produce. Unlike today’s simple anti-shoplifting tags in books and CD’s, the next generation will be cheap (costing one or two cents each), tiny (sand-grain sized), and smart enough to uniquely identify any individual manufactured product, by serial number as well as type and vendor. They can be embedded in plastic, wood, food, or fabric, and by remotely interrogating the RFID chips in your clothing or posessions the panopticon society’s agencies can tell a lot about you — like, what you’re reading, what you just ate, and maybe where you’ve been if they get cheap enough to scatter like dust. More insidiously, because each copy of a manufactured item will be uniquely identifiable, they’ll be able to tell not only what you’re reading, but where you bought it. RFID chips are injectable, too, so you won’t be able to misplace your identity by accident.

(And if the panopticon police don’t like the books you’re reading or the DVDs you’re watching, maybe they can use your tag fingerprint to order up a new you?)

NOTE:

In order to be use-friendly, one of the manufacturers of RDIF launched this site: http://www.discoverrfid.org/

And there is a Journal devoted to it: http://www.rfidjournal.com/

And the next generation IS here:

“Hitachi Develops World’s Smallest RFID Chip”
October 26, 2007 – Sarah Gingichashvili, The Future of Things (TOFT)

“The Japanese giant Hitachi has developed the world’s smallest and thinnest Radio Frequency Identification (RFID) chip. Measuring only 0.15 x 0.15 millimeters in size and 7.5 micrometers thick, the wireless chip is a smaller version of the previous record holder – Hitachi’s 0.4 x 0.4 mm “Micro-Chip”.

Miniature RFID chips may also have advanced military applications such as smartdust. Smartdust is the concept of wireless MEMS (Micro-Electro-Mechanical Systems) sensors that can detect anything from light and temperature to vibrations. Using a large amount of sensors is not a new concept – the U.S. military experimented with this idea already during the Vietnam War (Operation Igloo White). While the older sensors were relatively large and only somewhat effective, Professor Christopher Pister from UC Berkeley suggested in 2001 to create a new type of micro sensor that could theoretically be as small as a grain of sand. Research into this idea is ongoing and is being funded by DARPA (the Defense Advanced Research Projects Agency). What was only a theoretical concept in 2001 has now become a reality with the latest development by Hitachi, and could find its way to intelligence agencies across the world.

RFID chips are also a source for increasing controversy surrounding issues of privacy. An RFID chip can be used to track the location of unsuspecting individuals who have bought products that include RFID tags in their package. Having miniature cheap RFID chips, such as those developed by Hitachi, implanted inside anything we buy might make many people feel very uncomfortable. However, big businesses believe that consumers’ fears are dwarfed by the benefits of RFID chips, which include reduced theft, digital real time inventory, and better information on consumer shopping habits.” http://www.tfot.info/news/1032/hitachi-develops-worlds-smallest-rfid-chip.html

Trusted computing and Digital Rights Management

Availability: now-5 years.

Trusted Computing doesn’t mean computers you can trust: it means computers that intellectual property corporations can trust. Microsoft’s Palladium software (due in a future Windows release [2004: due in Windows Longhorn, renamed to NGSCB]) and Intel’s TPCA architecture are both components of a trusted computing platform. The purpose of trusted computing is to enforce Digital Rights Management — that is, to allow information providers to control what you do with the information, not to protect your rights.

Disney will be able to sell you DVDs that will decrypt and run on a Palladium platform, but which you won’t be able to copy. Microsoft will be able to lease you software that stops working if you forget to pay the rental. Want to cut and paste a paragraph from your physics text book into that essay you’re writing? DRM enforced by TCPA will prevent you (and snitch to the publisher’s copyright lawyers). Essentially, TPCA will install a secret policeman into every microprocessor. PCs stop being general purpose machines and turn into Windows on the panopticon state. It’s not about mere legal copyright protection; as Professor Lawrence Lessig points out, the rights that software and media companies want to reserve go far beyond their legal rights under copyright law.

If the trusted computing folks get their way, to ensure control they’ll need to pass legislation to outlaw alternative media. Jaron Lanier predicts that today’s microphones, speakers and camcorders could become contraband; and in case this sounds outlandish and paranoid, the US senate has seen more than one bill, (most prominent among them, the Consumer Broadband and Digital Television Promotion Act) that would require DRM interlocks in all analog-to-digital conversion electronics in order to prevent illicit copying.

(Presumably he wasn’t thinking of aircraft instrumentation, cardiac monitors, or machine tools at the time, but under the proposed law they would need copy-prevention interlocks as well … )

WIKI says about DRM and TCPA and Palladium:

“The Next-Generation Secure Computing Base (NGSCB), formerly known as Palladium, is a software architecture designed by Microsoft which is expected to implement parts of the controversial “Trusted Computing” concept on future versions of the Microsoft Windows operating system. NGSCB is part of Microsoft’s Trustworthy Computing initiative. Microsoft’s stated aim for NGSCB is to increase the security and privacy of computer users, but critics assert that the technology will not only fail to solve the majority of contemporary IT security problems, but also result in an increase in vendor lock-in and thus a reduction in competition in the IT marketplace.

NGSCB relies on hardware technology designed by members of the Trusted Computing Group (TCG), which provides a number of security-related features, including fast random number generation, a secure cryptographic co-processor, and the ability to hold cryptographic keys in a manner that makes them extremely difficult to retrieve, even to the machine’s owner. It is this latter ability that makes remote attestation of the hardware and software configuration of an NGSCB-enabled computer possible, and to which the opponents of the scheme chiefly object. Several computer manufacturers are selling computers with the Trusted Platform Module chip, notably the Dell OptiPlex GX620.”

“NGSCB and Trusted Computing can be used to intentionally and arbitrarily lock certain users out from use of certain files, products and services, for example to lock out users of a competing product, potentially leading to severe vendor lock-in. This is analogous to a contemporary problem in which many businesses feel compelled to purchase and use Microsoft Word in order to be compatible with associates who use that software. Today this problem is partially solved by products such as OpenOffice.org which provide limited compatibility with Microsoft Office file formats. Under NGSCB, if Microsoft Word were to encrypt documents it produced, no other application would be able to decrypt them, regardless of its ability to read the underlying file format.”

“When originally announced, NGSCB was expected to be part of the then next major version of the Windows Operating System, Windows Vista (then known as Longhorn). However, in May 2004, Microsoft was reported to have shelved the NGSCB project. This was quickly denied by Microsoft who released a press release stating that they were instead “revisiting” their plans. The majority of features of NGSCB are now not expected to be available until well after the release of Windows Vista. However, Vista includes “BitLocker“, which can make use of a Trusted Platform Module chip to facilitate secure startup and full-drive encryption. TPMs are already integrated in many systems using Intel’s Core 2 Duo processors or AMD’s Athlon 64 processors using the AM2 socket.” http://en.wikipedia.org/wiki/Next-Generation_Secure_Computing_Base

FROM windows itself:

“Our first delivery on the vision is a hardware based security feature in Longhorn [Vista] called Secure Startup. Secure Startup utilizes a Trusted Platform Module (TPM 1.2) to improve PC security and it meets some of the most critical requirements we heard from our customers-specifically, the capability to ensure that the PC running Longhorn starts in a known-good state, as well as protection of data from unauthorized access through full volume encryption.

Subsequent to Secure Startup, Microsoft will be focused on continuing to build other aspects of the NGSCB vision. These will complement Secure Startup to enable a broad range of new secure computing solutions. The technical specifications, timing and delivery vehicles are TBD.” http://www.microsoft.com/resources/ngscb/default.mspx

Cognitive radio

Availability: now-10 years.

Radio waves can travel through one another without interacting. Radio ‘interference’ happens when radio transceivers use dumb encoding schemes that don’t let multiple channels share the same wavelength: interference is a side-effect of poor design, not a fundamental limit on wireless communications.

With fast microprocessors it’s possible to decode any radio-frequency signal on the fly in software, by performing Fourier analysis on the raw signal rather than by using hard-wired circuitry. Software radios can be reconfigured on the fly to use new encoding schemes or frequencies. Some such encoding schemes work to avoid interference; so-called cognitive radio transcievers take account of other transmitters in the neighbourhood and negotiate with them to allocate each system a free frequency. (The 802.11 wireless networking protocols are one early example of this in action.) SR doesn’t sound like a tool of the panopticon society until you put them together with celldar and TCPA. Cellphones and computers are on a collision course. If the PC becomes a phone, and every computer comes with a built-in secret policeman _and_ can be configured in software, the panopticon’s power becomes enormous: remote interrogation of RFID dust in your vicinity will let the authorities know who you’re associating with, reconfiguration of phones into celldar receivers will let them see what you’re doing, and plain old-fashioned bugging will let them listen in. If they can be bothered.

(Invest in tinfoil hat manufacturers; it’s the future of headgear!)

NOTE:

Scientific American Magazine – March, 2006

Cognitive Radio

“Engineers are now working to bring that kind of flexible operating intelligence to future radios, cell phones and other wireless communications devices. During the coming decade, cognitive radio technology should enable nearly any wireless system to locate and link to any locally available unused radio spectrum to best serve the consumer. Employing adaptive software, these smart devices could reconfigure their communications functions to meet the demands of the transmission network or the user.

Cognitive radio technology will know what to do based on prior experience. On the morning drive to work, for instance, it would measure the propagation characteristics, signal strength and transmission quality of the different bands as it rides along with you. The cognitive radio unit would thus build an internal database that defines how it should best operate in different places and at specific times of day. In contrast, the frequency bands and transmission protocol parameters of current wireless systems have been mostly fixed.” http://www.sciam.com/article.cfm?chanID=sa006&colID=1&articleID=000C7B72-2374-13F6-A37483414B7F0000

Lab-on-a-chip chemical analysers

Availability: now-5 years.

Microtechnology, unlike nanotechnology, is here today. By building motors, gears, pumps, and instruments onto silicon wafers using the same lithographic techniques that are used for making microcircuitry, engineers are making it possible to build extremely small — and cheap — analytical laboratories. Devices under development include gas chromatography analysers, mass spectroscopes, flow cytometers, and a portable DNA analyser small enough to fit in a briefcase. The panopticon society is lavish with its technologies: what today would occupy a Police department’s forensic lab, will tomorrow fit into a box the size of a palmtop computer.

(And they won’t have to send that urine sample to a lab in order to work out that you were in the same room as somebody who smoked a joint two weeks ago.)

SEE:

https://www-eng.llnl.gov/mic_nano/mic_nano.html

http://www.mitsi.com/

and here’s one from the above company:

“The Miniature DVR with built in color pinhole camera, battery, and monitor with video motion and sound activation. Ideal for Investigations in hospitals, offices, retail or hotel rooms – anywhere you need to be in and out quickly. Options available such as external camera connection, body worn and network connection shown in MD-2000 model below.”

OR from Lawrence Livermore National Laboratories (LLNL):

“A dime-sized amplifier makes fiber-optic communications faster and clearer. A portable DNA analyzer helps detect and identify organisms in the field, including human remains and biological warfare agents. A tiny gripper inserted in a blood vessel treats aneurysms in the brain to ward off potential strokes. What do these technologies have in common? Each one is smaller than any comparable product, opening up a host of new applications. And each originated in Lawrence Livermore National Laboratory’s Microtechnology Center.” https://www.llnl.gov/str/Mariella.html

Data mining

Availability: -5 years to +10 years

Total Information Awareness. Department of Homeland Security. NSA. ECHELON. This article was emailed to Whole Earth Review’s staff; by including these keywords it almost certainly caught the attention of ECHELON, the data mining operation run by the NSA and its associated intelligence agencies. ECHELON has monitored all internet, telephone, fax, telex, and radio traffic for years, hoovering up the data. But analysing electronic intelligence is like trying to drink water from a firehose; the problem is identifying relevant information, because for every Al Qaida operative discussing the next bomb plot, a million internet denizens are speculating and gossiping about the same topic. And if the infoglut seems bad now, wait until your every walk down the high street generates megabytes of tracking data. The Department of Homeland Security is just one of the most obvious agencies trying to tackle the information surplus generated by the embryonic panopticon society. The techniques they propose to use entail linking up access to a variety of public and private databases, from credit rating agencies and the INS to library lending records, ISP email and web server logs, and anything else they can get their hands on. The idea is to spot terrorists and wrongdoers pre-emptively by detecting patterns of suspicious behaviour.

The trouble is, data mining by cross-linking databases can generate false inferences. Imagine your HMO with access to your web browsing records. Your sister asks you to find her some books about living with AIDS, to pass on to a friend; you go look on Amazon.com, researching the topic, and all the HMO knows is that you’re looking for help on living with AIDS. And how does the Department of Homeland Society know whether I’m planning a terrorist act … or doing my research before writing a novel about a terrorist incident? To make matters worse, many databases contain corrupt information, either by accident or malice. The more combinations of possible corrupt data you scan, the more errors creep into your analysis. But to combat these problems, the Office of Information Awareness is proposing to develop new analytical techniques that track connections between people — where they shop, how they travel, who they know — in the hope that if they throw enough data at the problem the errors will go away.

(Guess they think they need the panopticon surveillance system, then. After all, if data mining never worked in the past, obviously you can make it work by throwing more data at it …)

The pressure to adopt these technologies springs from our existing political discourse as we struggle to confront ill-defined threats. We live in a dangerous world: widespread use of high technology means that individuals can take actions that are disruptive out of all proportion to their numbers. Human nature being what it is, we want to be safe: the promise of a high-tech surveillance “fix” that will identify terrorists or malefactors before they hurt us is a great lure.

But acts of mass terror exist at one end of a scale that begins with the parking ticket, the taping of a CD for personal use in a Walkman, a possibly-defamatory statement about a colleague sent in private email to a friend, a mistakenly ommitted cash receipt when compiling the annual tax return … the list is endless, and to a police authority with absolute knowledge and a robotic compulsion to Enforce The Law, we would all, ultimately, be found guilty of something.

This brings up a first major point: legislators do not pass laws in the expectation that everybody who violates them will automatically be caught and punished. Rather, they often pass new laws in order to send a message — to their voters (that they’re doing something about their concerns) and to the criminals (that if caught they will be dealt with harshly). There is a well-known presumption that criminals are acting rationally (in the economic sense) and their behaviour is influenced by the perceived reward for a successful crime, and both the risk and severity of punishment. This theory is implicitly taken into account by legislators when they draft legislation, because in our current state of affairs most crimes go undetected and unreported. A panopticon singularity would completely invalidate these assumptions.

Furthermore: many old laws are retained despite widespread unpopularity, because a vocal minority support them. An estimated 30 percent of the British population have smoked cannabis, currently an offense carrying a maximum penalty of 6 months’ imprisonment (despite rumours of its decriminalization), and an absolute majority of under-50’s supports decriminalization, but advocating a “soft on drugs” line was perceived as political suicide until very recently because roughly 25% of the population were strongly opposed.

Some old laws, which may not match current social norms, are retained because it is easier to ignore them than to repeal them. In Massachusetts, the crime of fornication — any sex act with someone you’re not married to — carries a 3 month prison sentence. Many towns, states, and countries have archaic laws still on the books that dictate what people must wear, how they must behave, and things they must do — laws which have fallen into disuse, and which are inappropriate to enforce. (There’s one town in Texas where since the 19th century it has been illegal for women to wear patent leather shoes, lest a male see something unmentionable reflected in them; and in London, until 1998 all taxis were required to carry a bale of hay in case their horse needed a quick bite to eat. Diesel and petrol powered cabs included.)

These laws, and others like them, highlight the fact that with a few exceptions (mostly major felonies) our legal systems were not designed with universal enforcement in mind. But universal enforcement is exactly what we’ll get if these surveillance technologies come together to produce a panopticon singularity.

A second important side-effect of panopticon surveillance is the chilling effect it exerts on otherwise lawful activities. If you believe your activities on the net are being monitored for signs of terrorist intent, would you dare do the research to write that thriller? Nobody (with any common sense) cracks a joke in the waiting line at airport security — we’re all afraid of attracting the unwelcome attention of people in uniform with no sense of humour whatsoever. Now imagine the straitjacket policing of aviation security extended into every aspect of daily life, with unblinking and remorseless surveillance of everything you do and say. Worse: imagine that the enforcers are machines, tireless and efficient and incapable of turning a blind eye.

Surveillance need not even stop at our skin; the ability to monitor our speech and track our biological signs (for example: pulse, pupillary dilation, or possibly hormone and neurotransmitter levels) may lead to attempts to monitor thoughts as well as deeds. What starts with attempts to identify paedophile predators before they strike may end with discrimination against people believed to be at risk of “addictive behaviour” — howsoever that might be defined — or of harbouring anti-social attitudes.

We are all criminals, if you dig far enough: we’ve broken the speed limit, forgotten to file official papers in time, made false statements (often because we misremembered some fact), failed to pay for services, and so on. These are minor offenses — relatively few of us are deliberate criminals. But even if we aren’t active felons we are all potential criminals, and a case can be — and is being — made for keeping us all under surveillance, all the time.

A Panopticon Singularity is the logical outcome if the burgeoning technologies of the singularity are funneled into automating law enforcement. Previous police states were limited by manpower, but the panopticon singularity substitutes technology, and ultimately replaces human conscience with a brilliant but merciless prosthesis.

If a panopticon singularity emerges, you’d be well advised to stay away from Massachusetts if you and your partner aren’t married. Don’t think about smoking a joint unless you want to see the inside of one of the labour camps where over 50% of the population sooner or later go. Don’t jaywalk, chew gum in public, smoke, exceed the speed limit, stand in front of fire exit routes, or wear clothing that violates the city dress code (passed on the nod in 1892, and never repealed because everybody knew nobody would enforce it and it would take up valuable legislative time). You won’t be able to watch those old DVD’s of ‘Friends’ you copied during the naughty oughties because if you stick them in your player it’ll call the copyright police on you. You’d better not spend too much time at the bar, or your insurance premiums will rocket and your boss might ask you to undergo therapy. You might be able to read a library book or play a round of a computer game, but your computer will be counting the words you read and monitoring your pulse so that it can bill you for the excitement it has delivered.

And don’t think you can escape by going and living in a log cabin in the middle of nowhere. It is in the nature of every police state that the most heinous offense of all is attempting to escape from it. And after all, if you’re innocent, why are you trying to hide?” http://www.antipope.org/charlie/rant/panopticon-essay.html

TO ADD TO THIS:

“The Ambiguous Panopticon: Foucault and the Codes of Cyberspace” by Mark Winokur, from ctheory.net

“David Lyon’s The Electronic Eye: The Rise of Surveillance Society — contains a lengthy discussion of the way in which panopticism is defined by “uncertainty as a means of subordination” (in other words by how the authoritarian gaze is unverifiable), his discussion of panopticism per se is largely concerned with the various data-collecting agencies that use the Internet to exert an external coercion on the individual, not with how such authority is internalized: ‘The prison-like society, where invisible observers track our digital footprints, does indeed seem panoptic.’ A little less often, scholars are interested in the ways that the Net limits our ability to think outside the Net, in other words in questions about discourse and discipline.”

From the footnotes: David Lyon, The Electronic Eye: The Rise of Surveillance Society, Minneapolis, MN: University of Minneapolis Press, 1994, p. 65.

“An even more recent book states the case more baldly: “[W]e have every reason to believe that cyberspace, left to itself, will not fulfill the promise of freedom. Left to itself, cyberspace will become a perfect tool of control” (Lawrence Lessig, Code and Other Laws of Cyberspace, NY: Basic Books, 2000, pp. 5-6).”

http://www.ctheory.net/articles.aspx?id=371#_ednref4

AND check out the articles in the Surveillance and Society’s “Foucault and Panopticism Revisited” issue of their Journal: http://www.surveillance-and-society.org/journalv1i3.htm

AND check out this article on some recent comments on the Panopticon Society and what is happening in Britain with ID cards and iris scans, etc.:http://www.wombles.org.uk/article2007061046.php

AND read “Who is watching you?” by Deborah Pierce, Seattle Press On-line, http://archive.seattlepressonline.com/article-9464.html

AND for more from the Correctional News, CN Nov/Dec 06, Facility of the Month Nov/Dec 2006:

” A Centrifugal Force: A Round Addition in El Paso County, Colo., Updates a Historic Design”

” Each of the tower’s three floors contains a control room and an additional mezzanine level for extra bed space, giving the facility the appearance of having six floors.

“It’s based on the concentric ring theory,” says Greg Gulliksen, project architect. “The hub is the central control area in the middle; the next ring out is a circulation area around the control room; the next ring out is the dayroom; and the last ring contains the sleeping areas and the shower and toilet area.”

Each ward contains nine dormitory-style sleeping bays where inmates are grouped together without doors or bars. Each bay contains eight bunk beds and eight lockers.”

http://www.correctionalnews.com/ME2/Audiences/dirmod.asp?sid=&nm=&type=Publishing&mod=Publications%3A%3AArticle&mid=8F3A7027421841978F18BE895F87F791&tier=4&id=88327817A39E494AA4A426AF092D33D2

AND I saved the best for last:

The NYPD Panopticon Imprisons Harlem”, November 27, 2006, David W. Boles’ Urban Semiotic

“The Panopticon — a prison so built radially that a guard at a central position can see all the prisoners – is also known as the infamous and ever-vigilant Foucauldian unblinking eye of authority watching every move a prisoner makes while remaining rough and ready to strike punishment as often as needed, has come to the streets of Harlem as “Sky Watch.”

The Sky Watch, about two stories tall, consists of a booth for a cop that stands atop a tower that collapses when the officer is ready to leave.

The booth, which gives the cop a line of sight from 20 feet up, has four cameras, a high-powered spotlight and various sensors. The digital cameras, which continue recording when the booth is unstaffed, save the video to a hard drive.

The units, which cost from $40,000 to $100,000 apiece, are also being used by the U.S. Border Patrol and cops in Miami, Fort Lauderdale, Dallas and Fort Worth.

NYPD spokesman Paul Browne said the department has leased one or two of the devices and hopes to eventually have five.

Since they’re moveable, they’re more flexible than fixed cameras.

One tower was installed about three weeks ago at 129th Street and Malcolm X Boulevard in Harlem – drawing cheers and jeers.

What does this mean for the innocent residents of Harlem who now live in an open-air prison?

Here’s a traditional prison Panopticon where a central watchtower sits at the center of the structure surrounded by prisoners in their cells. The prisoners cannot see the watchtower but sunlight pouring through outer windowed cell walls shows all movement of the prisoners in shadow to the unblinking Panopticonic eye:

[Several tiers of inmates in this round cell block at Stateville Prison near Joliet, Illinois, are easily visible from the guard tower in the middle.]

Here’s the Harlem Sky Watch box in action — have you ever seen an uglier obelisk wannabe? — where the sentry tower becomes the center tower of the Panopticon while the buildings and apartments surrounding it become the windowed prison cells from which there is no escape from the unblinking eye of punishment:

A watched cauldron never boils, but an observed populace ultimately overthrows its gaoler.

Just who are being protected in Harlem and just who are being watched?

The unblinking eye of authority stings us all from the NYPD Harlem Panopticon and we are all made more guilty because of it ominous presence.” http://urbansemiotic.com/2006/11/27/the-nypd-panopticon-imprisons-harlem/

SO, BIG BROTHER IS WATCHING YOU!

To Clone or Not to Clone

Below is a draft of my paper on cloning. It utilizes some of the material from an earlier paper, which I hope to post soon, but from a different angle: The first deals with parentage, the second, this one, with the legal question of cloning itself. I believe this may be a draft, as some of the outline formatting doesn’t seem to mesh, but it’s somewhat complete, although there are missing parts, which I hope to correct as soon as I find the disk.

Unfortunately, I have not yet figured out how to copy the whole document with footnotes/endnotes in place, or paragraphs. So I tried to reformat the paragraphs, and included the endnotes, even though you can’t relate them to specific places in the document. If anyone wants the complete text, I can e-mail it to them. Hope you enjoy.

To Clone or Not to Clone

That is the Question of the of the President’s Council on Bioethics

It is not for Man to set boundaries, or to define the limits of the soul. Once human beings were as children, needing simple tales and naïve visions of pure truth. But in recent generations the Great Creator has been letting us pick up His tools and unroll blueprints, like apprentices preparing to work on our own. For some reason, He’s permitted us to learn the fundamental rules of nature and start tinkering with His craft.

I. Introduction

Immortality, or Coronado’s endless quest for the fountain of youth – man has been obsessed with the idea of continuity for centuries. Countless writers, philosophers, theologians, scientists, and futurists have debated and discussed it. And in the twentieth century, that idea took a new form – human cloning, the ultimate immortality. As the idea spread, science-fiction writers took it up, and it became an accepted possibility. Headlines such as “Welcome to Clonetown U.S.A,” and “They’ve Cloned Hitler’s Nose – & the Damned Thing’s Sprouted a Moustache” continue to fuel speculation on human cloning. Over the past twenty years, a number of books have been written, delving into the question of human cloning, questioning its basic tenets, whether or not to ban it, and who or what is a clone. But there are no true legal guidelines on cloning. Nothing in our legal pantheon allows for this or contemplates it. Therefore, new rules must be drawn as the era of cloning humans draws near.

Human cloning is a Pandora’s Box. A box of mystery, but also of possible evil, a chthonic process and nightmare to some, a “Brave New World” to others. But like Pandora discovered, once opened, it can prove to have consequences beyond imagining. Human cloning raises a host of issues, from property rights to estates, parental responsibility, human rights, and privacy rights. And like Pandora’s Box, once opened, these issues can not just be stuffed back inside and locked away. They are out in the open, resulting from humanity’s insatiable thirst for knowledge, and it is up to the human race to deal with the consequences.

Although I believe that ultimately a ban on human cloning will not be successful, for in all human history, nothing with commercial viability has ever been successfully banned (prohibition, prostitution, drugs, child pornography), this paper will address the creation and work of the President’s Council on Bioethics and its precursor, the National Commission on Bioethical Standards. Cloning will have commercial viability. The amount of money spent on in-vitro fertilization, and the undeniable medical value of stem cell research shows that cloning and stem cells are a lucrative technology. However, in an attempt to simplify this paper, I will not directly address stem cell issues, as that is an entirely different, although related field, and extremely complex, with its own set of moral issues.

Since cloning itself is in its infancy, the first step in the analysis must be a brief introduction to the basic techniques used, and the limits on cloning. Human cloning has not yet occurred, and there is no case or common law to draw on. Cloning is a difficult and inexact science, and the results are not always what are desired. Nevertheless, science marches on.

II. Background

A. Cloning around: a basic overview of techniques used in creating a clone.

The type of cloning research that this paper focuses on is reproductive human cloning, not therapeutic human cloning, in which cells are cloned to treat various diseases such as Parkinson’s and diabetes. Clone is derived from the Greek word klon meaning “twig.” For many types of plants and trees you can simply break off a piece, plant it and it will grow. And so it is with cloning, in a simplistic way. There are many definitions of cloning, including various methods of creating twins, but for simplicity, the definition used hereafter will be “fusion or insertion of a diploid nucleus into an egg (oocyte)”. A basic tenet to remember is that any clone will NOT be an exact duplicate of its donor; not an identical twin, but instead a separate entity, but shaped by environment, cytoplasmic differences, and epigenetic (chance outcomes of random motion of molecules) differences or mutations.

In cloning, the unfertilized ovum (oocyte), the largest cell in the human body, is modified. The oocyte nucleus is removed, and a donor nucleus is inserted into the ovum. Then an electrical pulse fuses the two, activating, or fertilizing, the oocyte. There are many variations on this technique, and until 1997, when Dolly the sheep was cloned, the question of using differentiated cells was insurmountable. Before Dolly, cloning was limited to cloning the early, undifferentiated cell, which can assume any cell characteristic. Differentiated cells are those that are past the initial embryonic stage and have already developed characteristics of the cell they are to become, a hair cell, a skin cell, etc, making them useless for cloning of a human.

That problem has been solved, and differentiated cells can now be used, allowing cloning from an adult, not just an embryonic cell. Of course the process is still in its infancy, and the success rate is about 200 to 1. Cloning raises the question of shortened life span. So far, no cloned animals have been alive long enough to see if they will live out their full life-spans. Dolly was cloned from an adult sheep cell, and her telemeres (the pieces at the end of chromosomes that keep the genetic material from fraying like the ends of a rope) show the same age as the donor sheep’s. As a cell replicates, the telemeres shorten a bit each time. The older the animal, the more cells have replicated, and the shorter the telemeres. Despite these characteristics `of aging, Dolly developed into a full-grown adult sheep and was able to have a lamb the natural way, so thus far it has not been a problem in living a normal sheep’s life.

Questions arise as to the success rate of clone attempts and the amount of genetic malfunctioning in the clone’s DNA. In the case of Dolly, 277 fusions of donor nucleuses and ovums were done, of which 29 developed into embryos, and those 29 embryos were introduced into 13 sheep, only one of which gave birth. Therefore, while the rate of successful fusion births is low, so far, with only one living example, the rate of genetic malformation in the case of Dolly was 0%, unless you take into account the shortened telemeres, which has yet to be proven a problem. By now, various other animals have been cloned besides Dolly, including mice, cows, goats, kittens, monkeys, and frogs.

B. To clone or not to clone, that is the question: the future and possible uses of human cloning.

The future of human cloning is still in doubt. Recent attempts to clone a kitten have been successful, but attempts to clone a millionaire’s beloved dog “Missy” have not been. But scientists believe it will happen, at least with dogs, and dozens of people have already deposited their pet’s genetic material with Texas millionaire John Sperling’s “Genetic Savings and Clone Bank” near Texas A&M University, where he funds research into animal cloning. The cloned kitten at Texas A&M differs from its genetic mother in coloring patterns, as coloring is not determined strictly by the lineup of genes, but of influences from the womb, again showing that the clone is not an identical twin, but has been influenced by the factors mentioned earlier

Texas A&M researcher Duane Kraemer summed up cloning by stating: “This is a reproduction, not a resurrection.”Human cloning is just around the corner, but has not happened yet. Various proposals are before the governments of many nations proposing to ban human cloning, and many nations have already banned it, including Germany, France, Japan, and the United Kingdom. The United Nations is considering an international convention on the subject. In July of 2001, the Republican controlled House passed a bill banning human cloning for all purposes.

The National Academy of Sciences, however, recommends a ban on reproductive cloning, but would allow therapeutic cloning. Currently there are two bills before the Senate, one to ban all human cloning, and another to allow therapeutic cloning. However, the bills have stalled in committee. USA Today has warned of two possible consequences of the current debate and failure to compromise: “Congress could pass an ‘overly broad ban that would choke off valuable medical research,’ or lawmakers could fail to pass any cloning legislation ‘at a time when the United States has dubious legal authority over rogue cloning labs.’” The legal future of human cloning is still in debate. But given the commercial potential, (Genetic Savings and Clone, et al), the incredible pull of the emotional need to recreate a beloved person, or the egomaniacal hope for immortality of a kind, combined with the simple fact that scientists are forever pushing the envelope, there is little doubt that human cloning will happen.

As a society, we need to be prepared to accept a human clone into our midst, and have laws in place that will establish the clone’s rights and legal status, and will also establish who will bear responsibility for the clone.Whether a clone is a human being with a soul has been a matter of debate. However, a cloned cell is not synthetic, it is alive, and at least as far as current research suggests, would develop into a fetus the way all humans do. In Lee Silver’s remarkable book on cloning and the American family, he posits that cloned children will be “full-fledged human beings, indistinguishable in biological terms from all other members of the species. Thus, the notion of a soulless clone has no basis in reality.” The clone “will simply be a later-born identical twin – nothing more, nothing less…she will be a unique human being, with a completely unique consciousness and a unique set of memories that she will build from scratch.”

Other issues surrounding the clone will be whether a clone is property or progeny, and if progeny, who will be its parents? The genetic donor (who’s own parents are the genetic parents of the clone), or the genetic parents themselves? And those issues change depending on the age of the donor, or if the donor is dead. And the legal status of the clone differs from whether it is a fetus (and thus either tissue, fetus, or some in between status), with the rights or lack thereof, or has matured into a child or adult, with rights. Discussion of these issues is beyond the scope of this paper, but makes for a fascinating discussion.III. AnalysisA. The National Bioethics Advisory Commission was established on October 20, 1999, by Executive Order No. 12975. It consisted of no more than 18 members, with appointments being made by the President. The members were to be knowledgeable nongovernmental experts and community representatives with the expertise to deal with bioethical issues. At least one member was to be selected from the areas of philosophy/theology, social/behavioral science, law, medicine/allied health professions, and biological research, and at least three members from the general public.

It is interesting to note that the commission was comprised of nongovernmental people. Meetings of the Commission were to be held up to 12 times a year, and meetings of the subcommittee(s) were to be convened as necessary. A Federal Government official was to be present at all meetings, and the meetings were open to the public, with some exceptions. Its purpose was to “provide advice and make recommendations to the National Science and Technology Council, chaired by the President; other appropriate entities and the public, on bioethical issues arising from research on human biology and behavior, and the applications, including the clinical applications, of that research.”

The basic function of the Commission was to oversee the appropriateness of governmental agencies and policies as they related to bioethical issues from research on human biology and the possible applications of that research. Its first priority was to protection of the rights and welfare of human research subjects and to oversee use of genetics information. The Commission used four criteria to establish priority for its activities:

A. The public health or public policy urgency of the bioethical issue.
B. The relation of the bioethical issue to the goals for Federal investment in science and technology.
C. The absence of another body able to deliberate fruitfully on the bioethical issue.
D. The extent of interest in the issue across the government.

The Commission issued its final report on “Cloning Human Beings” on June, 1997. In its report, the Commission concluded that “at this time it is morally unacceptable for anyone in the public or private sector, whether in a research or clinical setting, to attempt to create a child using somatic cell nuclear transfer cloning.” They found that current scientific information indicates that the techniques used were not safe to use in humans at that point in time, and cited safety concerns for the fetus/child. They also found serious ethical concerns, which they felt required a widespread and careful public deliberation. The Commission supported a continuation of the moratorium put in place by President Clinton immediately following the news of the successful birth of Dolly on February 23, 1997 “on the use of federal funding in support of any attempt to create a child by somatic cell nuclear transfer.” They also requested voluntary compliance of behalf of researchers in non-federally funded programs with the intent of the moratorium, and called it an “irresponsible, unethical, and unprofessional act.”

The Commission also recommended federal legislation to prohibit anyone from attempting to create a child through somatic cell nuclear transfer cloning, but recommended a sunset clause to ensure that Congress reviewed the issue after three to five years to decide whether the prohibition continued to be needed. It also recommended carefully written regulations to ensure that they not interfere with other areas of scientific research that were similar in nature, such as the cloning of human DNA sequences and cell lines for clinical purposes, and that the United States should cooperate with other nations to” enforce any common aspects of their respective policies on the cloning of human beings.” Because of the strong division between different ethical and religious perspectives on the moral issues that surrounded attempts to create a child using somatic cell nuclear transfer techniques, the Commission recommended that widespread and public debates be encouraged and that federal agencies should help educate the public on developments in the biomedical sciences. The Commission terminated on October 3, 2001, after several renewals of its sunset provision.

B: The President’s Council on Bioethics

Under the Bush Administration, the President’s Council on Bioethics was formed on November 28, 2001 by Executive Order 13237, with a similar structure and mission to that of the Commission. Its purpose was to “advise the President on bioethical issues related to advances in biomedical science and technology,” and make inquiries into the “human and moral significance of developments in biomedical and behavioral science and technology,” and explore the ethical questions, as well as provide a national public forum for discussion.The Council issued its report in July of 2002. It suggested that with the history of advances in cloning to date, the cloning of humans must be considered a “serious possibility.”

According to its report, in November 2001, American researchers claimed to have produced the first cloned human embryos, though they reportedly reached only a six-cell stage before they stopped dividing and died. The executive summary put the debate succinctly: “the legislative debates over human cloning raise large questions about the relationship between science and society, especially about whether society can or should exercise ethical and prudential control over biomedical technology and the conduct of biomedical research. Rarely has such a seemingly small innovation raised such big questions.”

I would take issue with the statement that human cloning is a “small innovation.” Human cloning has such incredible promise and potential problems, that I doubt anyone could realistically perceive it as “small.”

The Council attempted to “consider human cloning (both for producing children and for biomedical research) within its larger human, technological, and ethical contexts, rather than to view it as an isolated technical development.” It concurred with the two previously published reports recommending bans on cloning, the NBAC report from 1997 and the NAS report from 2002. The Council found that cloning to produce children might allow infertile couples to have genetically-related children, permit couples at risk of conceiving a child with a genetic disease to avoid the disease, create a transplant donor for a particular patient, enable someone to keep a living connection with a dead or dying loved one, or even allow society to try and replicate individuals of great talent or beauty.

But the Council found that such examples overemphasized freedom and desires, and paid insufficient attention to the well-being of the cloned child-to-be, and found that the arguments for cloning a child invalid The Council found that “cloning-to-produce-children would violate the principles of the ethics of human research, citing the Nuremberg Code of 1947, the Helsinki Declaration of 1964 and the Belmont Report, published in 1978 by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. All three set out various codes: The Nuremberg Code focusing particularly on the voluntary consent of the research subject, the idea that experiments should be “conducted only with the aim of providing a concrete good for society that is unprocurable by other methods,” and the avoidance of physical or mental harm. The Helsinki Declaration stated much the same, adding informed consent and allowing research only when the research-subject population is itself likely to benefit from the results of the experiment, with the benefits outweighing the risks. The Belmont Report proposed three ethical principles to guide the treatment of human subjects involved in scientific research. First was respect for persons, which required acknowledgment of the autonomy and individual rights of the subjects; second was beneficence, in which scientific research “must not only refrain from harming those involved but must also be aimed at helping them, or others, in concrete and important ways;” and third, is justice, which looks at “just distribution of potential benefits and harms.” Safety, consent, and the rights of research subjects are given the highest priority.

Given the high rates of mortality seen to date in the cloning of other mammals, the Council believed that “cloning-to-produce-children would be extremely unsafe, and that attempts to produce a cloned child would be highly unethical.” They go on to consider the larger questions of ethics and morality, such as freedom, equality, and human dignity. In looking at cloning for to produce children, the Council found that society should reflect on the meaning of having children, the nature of reproduction, the “importance of origins and genetic endowment for identity and sense of self;” and the relative importance of exercising greater control over the process of human reproduction.

The Council identified five categories of concern regarding cloning-to-produce-children. The first were problems of identity and individuality. They felt that cloned children might experience serious problems of identity in that they will be genetically virtually identical to a human being who is living or has already lived and because expectations for them lives “may be shadowed by constant comparisons to the life of the ‘original.’” The second area of concern was regarding the manufacturing process which might create an attitude that these children are products rather than a “gift.” The third area of concern was the prospect of a new eugenics, which might serve the ends of eugenic enhancement, either through avoidance of certain genetic defects or by preserving some genetic traits with the possibility of genetically engineered enhancements. The fourth area was the possibility of troubled family relations due to the change in the traditional structure of the family, i.e. grandfather, father, son. In cloning, fathers can become “twin brothers” to their “sons”; mothers could give birth to their genetic twins; and grandparents would also be the “genetic parents” of their grandchildren. The last concern was for the effects on society, cloning children affects not only the participants themselves, but also the entire society and could “set a precedent for future nontherapeutic interventions into the human genetic endowment or novel forms of control by one generation over the next.

In the absence of wisdom regarding these matters, prudence dictates caution and restraint.” The Council recognized the risks of using making moral assessments in public policy. They recognized the “special difficulty in formulating sound public policy in this area, given that the two ethically distinct matters – cloning-to-produce-children and cloning-for-biomedical-research-will be mutually affected or implicated in any attempts to legislate about either.

Nevertheless, our ethical and policy analysis leads us to the conclusion that some deliberate public policy at the federal level is needed in the area of human cloning.”Seven possible policy options were considered, including professional self-regulation with no federal legislative action, a ban on cloning-to-produce-children, with silence on cloning-for-biomedical-research, a ban on cloning-to-produce-children, with regulation of the use of cloned embryos for biomedical research, governmental regulation, with no legislative prohibitions, a ban on all human cloning, whether to produce children or for biomedical research, a ban on cloning-to-produce-children, with a moratorium or temporary ban on cloning-for-biomedical-research, or a moratorium or temporary ban on all human cloning, whether to produce children or for biomedical research.

The Council, having considered each option, recommended two possible policy alternatives, each supported by a portion of the Members. The majority recommendation, supported by ten of the seventeen members of the Council was for a ban on cloning-to-produce-children combined with a four-year moratorium on cloning-for-biomedical-research., with a call for federal review of current and projected practices of “human embryo research, pre-implantation genetic diagnosis, genetic modification of human embryos and gametes, and related matters, with a view to recommending and shaping ethically sound policies for the entire field.” By permanently banning cloning-to-produce-children, the Council felt that it would give force to the strong ethical verdict against cloning-to-produce-children, unanimous in the Council (and in Congress) and which the Council found was widely supported by the American people.

By calling for a moratorium, the Council wanted to provides time for further democratic deliberation because “a national discourse on this subject has not yet taken place in full.” It would also allow time for scientific evidence to be gathered that might give a better sense of “whether cloning-for-biomedical-research would work as promised, and whether other morally non-problematic approaches might be available. It would promote a fuller and better-informed public debate. And it would show respect for the deep moral concerns of the large number of Americans who have serious ethical objections to this research.”

For some of the Council, they held that cloning-for-biomedical-research can never be ethically pursued, and they endorsed a moratorium “to enable us to continue to make our case in a democratic way.” Others supported the moratorium because it would “provide the time and incentive required to develop a system of national regulation that might come into use if, at the end of the four-year period, the moratorium were not reinstated or made permanent.” To the majority, in the absence of a moratorium, “few proponents of the research would have much incentive to institute an effective regulatory system.”The minority recommendation by seven members of the Council was a ban on cloning to produce children, with regulation of the use of cloned embryos for biomedical research. By permanently banning cloning to produce children, they agreed with the majority. They would approve cloning-for-biomedical-research and permit it to proceed without substantial delay. According to the council, the research shows great promise, and its “actual value can only be determined by allowing it to go forward now.”

The minority, which supported cloning for biomedical purposes strongly endorsed the worthiness and importance of the research and believed it had enormous potential for medical therapies – a few of the members approved it unconditionally and with enthusiasm, but the rest approved it with moral concern. Among those who had moral concerns, they cited the “current lack of sufficient scientific evidence to sustain claims of the unique value of cloned embryos for the desired researches; the absence of proper regulatory institutions and mechanisms to enforce regulations,” which the members believed to be a prerequisite to allow the research to go forward; and they expressed an unwillingness to alienate large numbers of fellow citizens who oppose this research on moral grounds.

Even the Council was not immune to political and social pressure.The minority would establish, “as a condition of proceeding, the necessary regulatory protections to avoid abuses and misuses of cloned embryos. These regulations might touch on the secure handling of embryos, licensing and prior review of research projects, the protection of egg donors, and the provision of equal access to benefits” They also believed that “mechanisms to regulate cloning-for-biomedical-research should be part of a larger regulatory program governing all research involving human embryos, and that the federal government should initiate a review of present and projected practices of human embryo research, with the aim of establishing reasonable policies on the matter.”

C. The Clone Wars

All truth passes through three stages. First it is ridiculed. Second it is violently opposed. Third it is accepted as being self-evident.

There are many arguments on both sides of the cloning debate: who, how, when and where should cloning be allowed? The questions abound not just in the regulatory arena, but in larger circles as well. James Q. Wilson, Professor Emeritus at UCLA proposes that cloning be allowed only in married couples. He views it as a problem, not of creating an identical twin, but of creating a child without parents. He argues “that the structure of the family a child is born into is more important than the sexual process by which the child was produced.”Cloning can be viewed as simply another form of assisted reproduction like artificial insemination and in vitro fertilization. The important point to consider in protecting the child’s welfare is not how the child was created, but the family in which he or she was raised. Therefore, cloning should be limited to intact heterosexual families and restrictions should be placed on the sources of human eggs. With such restrictions in place, cloning is unlikely to become very common.

This would fit into some of the concerns raised by both the Commission and the Council, but doesn’t address the other areas of importance in cloning, such as allowing cloning to reduce the risks associated with genetic defects, to clone a child to become a donor to an existing seriously ill child or adult. To me, these arguments are spurious and violate some of the basic concepts of the fundamental right to reproduce.Still others insist that cloning would potentially violate familial context.

The United Church of Christ has entered the debate with its position. “Many observers believe that it is beneficial for children to have the genetic resources of two adults that are combined to form a genotype that is unique and yet tied genetically to both adults.” They go on to state that “the cloning of humans should not be attempted because it disrupts the ordering of a family’s natural and social affinity, distorts the family as a place of unconditional belonging, and violates the character of an unfolding and enfolding familial love.”

This argument is ludicrous. A cloned child can still be as much a part of a family as a normally reproduced one. Look at the success of children who are from an in-vitro process, or the children of gay parents, or those who come from sperm donors, or surrogacy. What about adopted children? The question of who might be the parent might arise, but is the subject of a longer paper, which must address the issues of tissue rights, egg donors, in-vitro process, surrogacy, and gay parenting.

A recent decision in the Family Court of New Castle County, Delaware, focused on a lesbian couple. One of the partners, Carol Chambers, (they had held a commitment ceremony to formalize their union), funded a portion of an IVF process that eventually ended in the pregnancy and birth of a son to Karen Chambers. The couple broke up in 1998, and Carol successfully petitioned the court for visitation rights. The biological mother Karen then sued Carol for child support. The Delaware court found that as she had contributed to the IVF process, her actions “constituted a symbolic act of procreation. Judge Darrow concluded that “[h]ad Karen and Carol not acted in tandem, David would never have been conceived”.

Perhaps Judge Darrow has it right in determining parentage by who is responsible for bringing the child into the world. If an adult clones himself, then he or she is responsible. If parents clone their own child, then they should be held responsible. And if a lab clones a child, then the lab is responsible at least for the financial care of the child. Timothy Madigan, the editor of Free Inquiry, a humanist journal, stated “[h]uman clones would be unique and special persons with the same human rights and qualities that all other people possess. It is opponents of cloning who threaten to stigmatize clones as copies or monsters. Society will have to protect the equality of clones.”

I believe that Madigan has it right: clones will eventually exist, and must be according the dignity and respect that all human should be given, as a clone will be human.John Robertson proposes a possible ban on cloning unless the parties requesting the cloning will also agree to rear the clone. He argues that it would prevent someone from creating clones for their use as subjects or workers, and the child’s welfare would predominate. He discusses the possibilities of bans on cloning yourself, or even cloning your parent, and rearing the child yourself. The primary concern for Robertson is the welfare of the cloned child and how well the family unit will adapt.

This connects with Judge Darrow’s opinion, discussed earlier, in which parentage is decided on who agreed to bring the child/clone into the world.Robertson also discusses the need for consent of the adult clone (otherwise a battery), and consent of the cloned source’s genetic parents. Since there are reproductive implications for the genetic parents, he argues that their consent is necessary. And he raises the specter of clone veto power, whereby in giving the genetic parents the right to veto the cloning of their adult child; they deprive their child of the fundamental right to reproduce. In such cases, no custodial burdens should be placed on the genetic parents/ societal grandparents of the proposed clone.

Robertson states that an important regulatory issue is “the need to clarify parental rights and duties in resulting offspring,” which will assist in minimizing potentially detrimental legal battles over child custody and visitation and help reduce any confusion over kinship. “Clarification and certainty can be achieved by legislative specification of those relations or by legislative or judicial recognition of the precloning agreements of the affected parties.” I agree with this position, in that there is a need to regulate not cloning, but the issues surrounding an existing clone.

Robertson discusses the need for legislative intervention in cases where children or embryos are cloned, at least so that kinship and rearing relationships are clearly established. He believes however that clarification of familial roles is most needed when a third party donor is involved, and the laws should be similar to current sperm/egg donor arrangements. So, it is up to the legislative bodies and the courts to provide us with the necessary guidelines and rules that will protect the clone’s rights and determine its parentage. To not provide such rules would is like running around with a bag on your head muttering “if I can’t see the cliff, I won’t fall off it.”

Just because you can’t see the occurrence of something (believing you have regulated it out of existence), does not obviate the possibility that the banned activity will happen anyway. Cloning will appear, and to not project that occurrence is the same as walking deliberately off that cliff. Theologians and sociologists can debate all they want about the merits and ethics of cloning, just as they did during the temperance movements of the 19th century up to and during prohibition. But surely society as a whole has learned by now that ignoring or banning a problem doesn’t just stop it in its tracks: that life goes on willy-nilly, and when life is given a way to emerge, it will. And cloning can provide so much more than just mere life. It has the potential to save lives, resurrect deceased loved ones, and provide new ways for childless couples to reproduce. That cloning might interfere with the natural selection process and the general evolution of the species is debatable, but moot: cloning will occur, the only question left is when, and how will we deal with it.

IV.

Conclusion

Lives are like snowflakes – forming patterns we have seen before, as like one another as peas in a pod (and have you ever looked at peas in a pod? I mean really looked at them? There’s not a chance you’d mistake one for another, after a minute’s close inspection), but still unique.
As stated before, human cloning will be a difficult area in which to enforce a ban, and an especially difficult area to formulate concrete policy. Any regulatory agency, such as Health and Human Services (no regulatory agency has been set up specifically for this area), given the oversight and enforcement of a ban on human cloning will be faced with a perhaps insurmountable task.

Regulatory actions may be put in place, but can they be adequately enforced? How do you regulate and enforce something that could conceivably be done in any college, high school or even basement lab, such as methamphetamine production? The governmental agencies in charge of such regulation can try to enforce, but will never be 100% successful. Francis Fukuyama, in his book “Our Posthuman Future: Consequences of the Biotechnology Revolution,” argues that the lack of 100% enforcement is not a valid reason not to regulate.

But the examples used, such as Internet pornography, or nuclear proliferation, do not have the same consequences. Pornography will exist, nuclear weapons will exist, m\but the consequences of not being able to enforce regulations on the production of human beings has vastly greater consequences. What will the penalties be? And how will the government consider any actual resulting human clone?Although frozen embryos, IVF, and human clones seem far apart in the spectrum of reproductive technology, in reality they have similar arguments used for and against them, such as interference in the natural birth process, the questions of true “parentage” and familial ties, against the need and desire for humans to reproduce in any means possible, and the ability of human to create a family, whatever its origins. Once a human clone is brought to birth, another set of rules comes into play. It is up to both the legal community and the legislature to establish a set of precedential rules and regulations that will take all forms of a human clone into account – from a pre-embryo to a full adult clone.

The recommendations by the Council lay the foundation for legislation and laws regarding parental determination of human clones. Although most nations aim to ban cloning, there is no one single approach to cloning from all nations and gaps will occur. And of course the potential for the black market economy exists. Someday, somewhere, a human clone will arrive and need the protection of our laws. What status will we accord it? Who will be responsible (the donor, the genetic parents, the person who “made” the clone)? The simple question of who is the parent of a clone has tremendous interpretation. Looking at legal precedent, following it through the various incantation of technological reproduction, the answer seems to lie in who is responsible for bringing the clone to being? Who made the decision to clone?The questions must be answered, most likely on a case-by-case determination in the beginning, depending on the genetic parentage of the clone, and who, if any, claims responsibility or shirks it.

We need to start that forward thinking process now, for as Herbert Marshall McLuhan, a Canadian writer and education said, “We drive into the future using only our rear view mirror.” We cannot move forward by examining the past too closely. Laws must be drafted to protect the rights of those citizens yet to come, and must come from justice, fairness and equality.

Cloning will be around as long as humans are, or at least until they come up with a newer and more advanced reproductive technique. The world changes and we must change with it. We cannot go through life with blinders on, repulsing all scientific advances. Think of the stir some of the earlier advances caused, like vaccines (which are still questioned today by certain groups), and how each new step along the way has been fraught with debate and controversy. The same is true with cloning.

Right now, society is frightened by the very idea and its implications. As Machiavelli said, “there is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to initiate a new order of things…partly from the incredulity of mankind, who do not truly believe in anything new until they have had actual experience of it.” But most of those questionable ideas and concepts eventually proved to have value and were accepted. So it will be with cloning.

If we have laws in place to deal with clones, then the advent might not be as frightening as many assume. People opposing cloning fear the rise of eugenics, and the interference it what many feel is a god-given ability, that to reproduce. But as the quote at the beginning of the paper suggests, perhaps God, by giving us the brains and thirst for ever expanding knowledge, may be allowing us to change the reproductive parameters in place, and add new methods to the “mix.” Much of the debate arises over the ethical implications and problems for the clones themselves. Laws in place could negate some of that concern, but it will take a generation or more to make the social and institutional changes necessary. Social order and institutions change slowly to accommodate what is actually happening in the world.

Consider the recent calling of the cardinals to Rome to address the issue of child molestation, and the resignation of Cardinal Law in Boston just a few days ago, the first ever in America, and the opening of the possibility of the archdiocese of Boston filing for bankruptcy due to the costs associated with the sexual abuse scandals that have rocked the church (again a first). Such a thing could never have been conceived of a century ago. But it is happening, and the church is instituting policies to help prevent such things happened again. How successful they will be is still uncertain. “One thing we can say about man’s future with a great deal of confidence is that it will be more or less surprising.”

But ends must meet needs, and we as a society must arise to accept the new order. Although laws to protect the clones will be a long time in coming, and no doubt will not happen until we are forced through the reality of a clone’s presence to promulgate the laws, eventually I foresee that as a society we will “adopt” the clones and their concerns and enfold them into our social structure. What choice will we have? A clone will be a living, sentient being, and should be entitled to the penumbra of rights guaranteed by our constitution, and entitled to a loving parent, as any child is.

Perhaps Judge Learned Hand said it best:That community is already in the process of dissolution … where nonconformity with the accepted creed…is a mark of disaffection… Such fears as these are the solvent which can eat out the cement that binds the stones together…The mutual confidence upon which all else depends can be maintained only by an open mind and a brave reliance on free discussion. I do not say these will suffice…[but] we must not yield a foot upon demanding a fair field and an honest race.”

The Commission and Council’s recommendations and desire for nationwide discourse on the subject is a noble and wise course of action. But it may take generations for the majority of society to find a tolerance for human cloning, but that does not negate the need for laws and regulations now, in the event that a human clone is born, even against regulations that might be put into effect. Such laws would encompass the whole gamut of human rights, but especially that of parenting. Once a clone is born it is human, but will society accept it as such? Should the clone become part of a new protected class under Title VII? These are the questions that must be answered now.

Endnotes (numbering above lost in copying/pasting)
1 Brin, David – Kiln People, Tor, 2002, pg. 89. This science fiction novel details the use of “clay” molds to imprint the psychic signature of the owner. Each clay clone is then sent out on its day’s work, depending on the quality of the mold. Green clays clean, while black clays do the technical work, and grays are everyday workers. After 24 hours, each clay comes back to download his day’s memories into the original. The novel is a “day in the life” of an original and three clays as they all stumble upon a mystery and is told through the eyes of each clay and its original as they race to solve the crime and reunite before the day is up.
2 Figueroa, Michael, Weekly World News, December 18, 2001. The weekly tabloid “exposes” the sleepy town of Pecos, Texas, where the government has supposedly been secretly cloning humans since 1973. The author claims there are at least seven originals with up to 80 clones each.
3 York, Vicki, Weekly World News, November 20, 2001. This time the tabloid alerts the world to the fact that tissue was taken from Hitler’s nose by his SS followers shortly after his suicide. The tissue has been handed down through generations of nazi-sympathizers, and in 1996, after the news of the cloning of Dolly the sheep, the scientists decided to resurrect Hitler through cloning. Unfortunately, according to the scientists, the only thing that has grown is his nose and moustache.
4 Aldous Huxley’s utopian (or perhaps dystopian?) “Brave New World” envisioned a place where “Community, Identity, and Stability” ruled, and babies are born in laboratories. But like any utopian vision, it may not be as perfect as it seems. Is ignorance truly bliss? Brave New World was an existentialist commentary on the ultimate horrors of becoming too much alike, without independent thought. The hero, John Savage, struggles to come to terms with the idea of breaking the strict complacency and becoming a single sentient entity. Huxley was perhaps influenced by Frederich Nietzsche’s “Ubermensch” or overman: one who is neither master nor slave, but has released all bonds of conformity.
5 Hamilton, Edith – Mythology. Pandora was the first woman on earth, created by Zeus from water and earth. Her name translated is “all gifted”. Pandora was sent to Prometheus as a punishment for his having stolen fire from the gods. She was sent with a box, and was told not to open it. Being “human”, her curiosity was piqued, and she opened the lid. Immediately, all the evils and illnesses contained therein escaped and spread across the earth. She tried to replace the lid quickly, but was unable to stem the tide. When all the evils had escaped, the only thing left in the bottom of the box was hope, which remains man’s saving grace. So it is with cloning – mankind’s interest and curiosity are aroused, and we cannot stop it.
6 See Prohibition, the War on Drugs, the prostitution laws on the books in every state and county, and the rise in child pornography, particularly over the Internet, despite attempts by law-enforcement to eradicate it. Each of these prohibited activities was and is commercially viable and feeds on man’s various proclivities towards gratification and self-aggrandizement.
7 In “The Big Gene Profit Machine”, author Tebo chronicles the rush to patent biotech discoveries, and the enormous value of those patents: “The real dollar value of those licensing rights amounts to billions over time,” Tebo, Margaret Graham, “The Big Gene Profit Machine,” ABA Journal April 2001, p.46. The religious groups have also weighed in on the argument: “But it’s not the case that the motives and the impetus behind this research is perfectly pristine and altruistic. This is biotechnology, it is a commercial enterprise as well with power and prestige and significant money to be made from it”, Sondra Wheeler, Professor of Christian Ethics at Wesley Theological Seminary, from an episode of the PBS program “Religion and Ethics Newsweekly”, April 12, 2002 entitled “Religious Views on Stem Cell Research.” See: http://www.pbs.org/wnet/religionandethics/week448/perspectives.html. Michael Branigan, Executive Director of the Center for the Study of Ethics at La Roche College, in his Guest Article “An Opportunity for Preventative Ethics” asks why we are doing this. “This is the matter of motives. Researchers in this emerging field are no doubt motivated by the desire to alleviate the numerous disabilities and deaths incurred through tissue and organ degeneration. And their efforts are uniquely interdisciplinary, requiring the collaboration of experts in fields including biology, engineering, medicine, microscopic imaging, physics, chemistry, computer science, mathematics, and robotics. At the same time, the tissue engineering enterprise entails the partnership of science and business, and promises to be a multi-billion dollar industry. The potential for profit is enormous.” Pittsburgh Tissue Engineering Initiative Report, “Pittsburgh’s Powerhouses of Regenerative Medicine,” http://www.ptei.org/news/article_02.html.

8 This may no longer be true. A recent news report on April 6, 2002 announced that fertility specialist Dr. Severino Antinori, who made headlines eight years ago by helping a 62 year old woman become pregnant and give birth, is reported to have claimed that a patient is pregnant with the world’s first cloned baby. Dr. Antinori has been developing a cloning program at his clinic in Rome, Italy, and reportedly made the announcement at a conference on genetic engineering in Abu Dhabi. Sources have been unable to confirm this report. CNN.com Health: “First Cloned Baby – Report,” http://www.cnn.com/2002/TECH/science/04/06/human.clone/index.html.In addition, the British scientists at the Roslin Institute, which cloned Dolly the sheep, have applied for a license to the Human Fertilisation and Embryology Authority, the British government body that regulates embryo research to experiment on human embryos for medical purposes. Britain has the world’s most liberal policy on stem cell research and allows the creation of embryos as a source of stem cells — the primitive master cells that turn into other cell types, which could be used to find cures to a wide range of diseases, such as Parkinson’s and Alzheimer’s. CNN.com Health: “Dolly Team Turn to Human Embryos,” http://www.cnn.com/2002/HEALTH/04/11/britain.cloning.reut/index.html. Earlier, on November 26, 2001, scientists in the U.S., at a private research company called Advanced Cell Technology announced that they had cloned embryos by removing the DNA from human egg cells, took DNA from an adult human, which was then implanted into the egg cell and stimulated to grow into a six-cell embryo. Although this is a preliminary step only, British geneticist Dr. Patrick Dixon, “an authority on the ethics of human cloning, warned the breakthrough could open the door to producing full-scale human clones. ‘It is now only a matter of time before a clone human is born,’” Cnn.com Sci-Tech: U.S. Cloning Advance Shocks the World,” http://www.cnn.com/2001/TECH/science/11/26/human.cloning.reax1200/index.html
9 Extensive research has failed to reveal any case law or common law that deals with a human clone. There are a number of good law review articles that deal with the ethical issues, but statutory law is still under debate. See Frey, Kelly L. “New Reproductive Technologies: The Legal Problem and a Solution” a comment in the Winter 1982 edition of the Tennessee Law Review, 49 Tenn L. Rev. 303 (1982) and Smith, Kevin H., “Déjà Vu All Over Again: What To Do When The Octogenarian Really Is Fertile And Other Legal Conundrums Which Will Result From The Cloning Of Human Beings,”77 Denv.U.L.Rev. 35 (1999).
10 Barbara MacKinnon, ed., – Human Cloning: Science, Ethics and Public Policy, University of Illinois press, 2000, pg. 12.
11 The word clone has come to mean an exact duplicate of something, such as a clone hard drive. Aldous Huxley, in “Brave New World” gives clone as different label. He describes bokanovskification chambers, where fertilized human eggs are exposed to a process that causes them to “bud,” creating several copies of the original; in essence, creating hundreds or thousands of identical “twins”
12 In Senate Bill 790, “The Human Cloning Prohibition Act of 2001,” the term `human cloning’ is defined as “human asexual reproduction, accomplished by introducing the nuclear material of a human somatic cell into a fertilized or unfertilized oocyte whose nucleus has been removed or inactivated to produce a living organism (at any stage of development) with a human or predominantly human genetic constitution.”
13 Seidel, George E. Jr. – Cloning Mammals: Methods, Applications, and Characteristics of Cloned Animals, pg. 17. Contained in Barbara MacKinnon, ed, – Human Cloning: Science, Ethics and Public Policy, University of Illinois press, 2000;
14 Id. at 17-18. “Even biologically, a clone [produced using certain cloning techniques] would not be identical to the ‘master copy.’ The clone’s cells, for example, would have energy-processing machinery (mitochondria) that come from the egg donor [who may] not [be the same person as the person who donated] the nucleus [of the cell, which contains the overwhelming majority of genetic material]. But most of the physical differences between originals and copies wouldn’t be detectable without a molecular biology lab. Smith, Kevin H., “Déjà Vu All Over Again: What To Do When The Octogenarian Really Is Fertile And Other Legal Conundrums Which Will Result From The Cloning Of Human Beings,” 77 Denv. U.L. Rev. 35 (1999), fn.13. citing Wray, Herbert et al., “The World After Cloning,” U.S. News & World Report, March 10, 1997 p.59. Id. at 53.
15 Seidel, George E. Jr. – Cloning Mammals: Methods, Applications, and Characteristics of Cloned Animals, pg. 18. Contained in Barbara MacKinnon, ed, – Human Cloning: Science, Ethics and Public Policy, University of Illinois press, 2000
16 Wilmut, I., Schnieke, A.E., McWhir, J., Kind, A.J. and Campbell, K.H.S., Viable Offspring Derived From Fetal and Adult Mammalian Cells, Nature 385 (1997), 810-13
17 Id.
18 Id.
19 Seidel, supra, Note 13 at 24-30. See also, Catherine Verfaillie’s study from the University of Minnesota’s Stem Cell Institute, published in Nature, June 20, 2002, where they have proved that differentiated, or “multipotent adult progenitor” cells can grow into other types of cells, much the same as embryonic cells can now. This may make the ethical debates surrounding stem cell research and its fetal properties moot.
20 Id.
21 Shiels, Paul G., et al., “Analysis of telemere lengths in cloned sheep,” Nature 399, 316 – 317 (1999)
22 Id.
23 Telemeres play a role in the protection and stabilization of the chromosomes, and it is theorized, though not certain, that cell death might occur when the telemeres are critically shortened. Dolly is the flagship case of this theory, as she was the first animal cloned from an adult cell. She has shown signs of shortened telemeres, but it hasn’t evidenced itself in any health problems or premature aging yet. Shiels, Paul G., et al., “Analysis of telemere lengths in cloned sheep,” Nature 399, 316 – 317 (1999)
24 Id.
25 Silver, Lee, M., Remaking Eden: How Genetic Engineering and Cloning Will Transform the American Family, Avon Book, 1998, p. 120.
26 Washington Post Live Online Health Talk segment titled: “Cloning Your Pet
27 American Health Line February 15, 2002
28 ABC’s 20/20, March 1, 2002
29 ABC’s 20/20, March 1, 2002
30 In a Washington Post Live Online Health Talk segment titled: “Cloning Your Pet,” host Abigail Trafford interviews Lou Hawthorne, CEO of Genetic Savings and Clone, Inc. Hawthorne explains that the mother cat was a calico, but the daughter CC is a tiger tabby domestic shorthair. “Calicos are a unique genetic oddity whose appearance cannot be cloned precisely.” In the Genetic Savings and Clone website, http://www.savingsandclone.com, an explanation is given for this difficulty. “Calicos are almost always female, which means they have two X-chromosomes (versus the male’s XY). One of these X chromosomes contains a gene for orange coat color and the other contains a gene for black coat color (white patches are specified by a different set of genes which are not relevant here). For reasons that are not fully understood, as the embryo develops, a phenomenon called “X-linked inactivation” occurs, in which one or the other X-chromosome in every cell in the Calico embryo becomes randomly inactivated. If the specific X-chromosome containing the gene for orange coat color becomes inactivated, that cell will go on to produce black coat color (assuming it becomes a coat follicle cell). The inverse is true if the X-chromosome containing the gene for black coat color becomes inactivated.Mosaicism” is the term for distribution of different cell types within a single organism. Mosaicism is three-dimensional, meaning that the inactivation of orange or black-producing genes occurs within cells throughout the calico’s body regardless of whether the cells have anything to do with production of the animal’s coat. Thus even the specific cumulus cell used to clone CC would have been inactivated for either orange or black coat color.If the nuclear transfer process were to reset the inactivated X-chromosome the way it resets the nuclear differentiation, then one might expect to see a calico clone with a calico coat. On the other hand, if nuclear transfer does not reset X-activation then one would expect to see a clone with a black coat if the donor cell used had an orange coat gene on the inactivated X-chromosome, and conversely one would expect a clone with an orange coat if the donor cell used had an black coat gene on the inactivated X-chromosome. The fact that CC has no orange in her coat is consistent both with the theory that nuclear transfer does not reset X-activation, and also that the cumulus cell used had an orange coat gene on the inactivated X-chromosome.”
31 http://abcnews.go.com/sections/scitech/2020/kitty020215.html
32 See note 8 supra
33 On January 12, 1998, 19 European nations signed a ban on human cloning, http://www.ess.ucla.edu/huge/clonban.html. http://www.laurushealth.com/HealthNews/reuters/NewsStory0226200224.htm. See also, Fukuyama, Francis, Our Post Human Future: Consequences of the Biotechnology Revolution, Farrar, Straus and Giroux, N.Y., 2002.
34 On February 26, 2002, the United Nations began drafting an international treaty that would ban human cloning
35 107th Congress, 1st Session, HR 2505, Human Cloning Prohibition Act of 2001, 7/31/01
36 The National Academies of Science Report released on January 18, 2002 states that reproductive cloning is “dangerous for the woman, fetus, and newborn and is likely to fail.” The panel supported the conclusion of a previous National Academies’ report “Stem Cells and the Future of Regenerative Medicine,” that recommends biomedical research using nuclear transplantation to produce stem cells be permitted. According to the report, “very few cloning attempts are successful. Many clones die in utero even at late stages or soon after birth — and those that survive frequently exhibit severe birth defects…Human reproductive cloning is likely to have similar negative outcomes. Because many eggs are needed for human reproductive cloning attempts, human experimentation could subject more women to adverse health effects — either from high levels of hormones used to stimulate egg production or because more women overall would be sought to donate eggs, which involves surgery with its own inherent risks, the panel noted… Moreover, the cloned offspring — who would face the greatest risks of abnormality and death — would not be in a position to offer consent. These circumstances provide additional reasons to exercise caution.” http://www4.nationalacademies.org/news.nsf/isbn/0309076374?OpenDocument.
37 S.790, 4/26/01 107th Congress, 1st session, To Amend Title 18, United States Code, to prohibit human cloning
38 107th Congress, 2d Session, S. 1893, To Ban Human Cloning While Protecting Stem Cell Research, 1/24/02
39 American Health Line January 24, 2002; quoting USA Today, Arlington, Va., Jan 23, 2002
40 Id.
41 See notes 26-30 supra
42 The Very Rev. Kevin Michael Quirk, JCD, Judicial Vicar of the Roman Catholic Diocese of Wheeling-Charleston states in answer to a student’s question on whether a human clone had a soul: “I would say that the animal cloning experiments, if they are proved to be actual cloning do seem to indicate that clone’s do have at least an animal soul. The soul is the principle of life and that which gives form to the material or physical body. Without a soul, decay and decomposition occur. This is precisely what happens at death when the soul leaves the body, decomposition begins to occur. So, if a thing is alive, it does have a soul.However, there is a vast difference between animal souls which are sentient and human souls which are rational/spiritual. Would a human clone possess a human soul? This is the profoundest and most troubling question in the area of cloning, leaving aside the question of why we should even think about cloning people. The possession of a human soul is necessary for human identity and each soul is created uniquely and specifically by God at the moment of conception. Thus, would cloning force God to create a unique human soul or would a merely animal soul be given to a clone, making it a non-human automaton? The answer, hopefully, will never be known.” http://www.dwc.org/questions/Morality/clonesoul2.htm
43 Silver, Lee M., Remaking Eden: How Genetic Engineering and Cloning Will Transform the American Family, Avon Book, 1998
44 Id. at 125
45 Id. at 125
46 President Bush and Secretary Tommy Thompson of Health and Human Services are spearheading a move to allow fetuses to be redefined as children for purposes of allowing federally funded childcare services prior to birth. Ryan, Joan, President attempts a pre-emptive strike on Roe v. Wade, Moscow-Pullman Daily News, October 27, 2002
47 Executive Order 12975, October 3, 1995, Creation of The National Bioethics Advisory Commission Federal Register: October 5, 1995 (Volume 60, Number 193), Page 52063-52065
48 Id.
49 Executive Order 12975, October 3, 1995, Creation of The National Bioethics Advisory Commission. Report issued on Cloning Human Beings, June 1997. An additional report on Ethical Issues in Human Stem Cell Research was issued in September 1999. The Commission recommending continuing federal funding for stem cell research using fetal cells from dead tissue, or from those not used in IVF, but would ban the use of federal funds for stem cell research using somatic cell transfer or those made solely through IVF for research purposes. It might prove to be difficult to prove in the case of IVF what the initial intentions were, and obviously ways to get around it are easily obtained.Charter of the Commission, October 20, 1999PurposeThe National Bioethics Advisory Commission will provide advice and make recommendations to the National Science and Technology Council, chaired by the President; other appropriate entities and the public, on bioethical issues arising from research on human biology and behavior, and the applications, including the clinical applications, of that research.AuthorityExecutive Order 12975, as amended. This Commission is governed by the provisions of theFederal Advisory Committee Act (FACA), Public Law 92-463, as amended (5 U. S.C. Appendix2), which sets forth standards for the formation of advisory committees, and implementing regulations (41C.F.R. 101.6.10).FunctionsThe National Bioethics Advisory Commission shall advise, consult with, and make recommendations to the National Science and Technology Council, chaired by the President; Federal agencies; and other appropriate entities, and also make available to the public the Commission’s advice and recommendations. The Commission’s purview includes the appropriateness of departmental, agency, or other governmental programs, policies, assignments, missions, guidelines, and regulations as they relate to bioethical issues arising from research on human biology and behavior, and applications, including the clinical applications, of that research. The Commission shall identify broad, overarching principles to govern the ethical conduct of research, citing individual projects only as illustrations for such principles. The Commission shall not be responsible for the review and approval of individual projects. As a first priority, the Commission will direct its attention to consideration of A. Protection of the rights and welfare of human research subjects; andB. Issues in the management and use of genetics information including but not limited to human gene patenting.In addition to responding to requests for advice and recommendations from the National science and Technology Council, the Commission also may accept suggestions for issues for consideration from both the Congress and the public. The Commission also may identify other bioethical issues for the purpose of providing advice and recommendations, subject to the approval of the National Science and Technology Council. The Commission shall consider four criteria –in establishing priority for its activities:A. The public health or public policy urgency of the bioethical issue.B. The relation of the bioethical issue to the goals for Federal investment in science and technology.C. The absence of another body able to deliberate fruitfully on the bioethical issue.D. The extent of interest in the issue across the government. (The Commission ordinarily will not deliberate on a bioethical issue of interest to just one department or agency.)StructureThe National Bioethics Advisory Commission shall consist of not more than 18 members including the Chairperson. Appointments shall be made by the President, who shall select from knowledgeable non-Government experts and community representatives with special qualifications and competence to deal effectively with bioethical issues. At least one member shall be selected from each of the following categories of primary expertise: (1) philosophy/theology; (ii) social/behavioral science; (iii) law; (iv) medicine/allied health professions; and (v) biological research. At least three members shall be selected from the general public, bringing to the Commission expertise other than that listed. The membership shall be approximately evenly balanced between scientists and non-scientists. Close attention will be given to equitable geographic distribution and to ethnic and gender representation. Members of the Commission will serve for terms of 2 years and may continue to serve after the expiration of their term until a successor is appointed. A member appointed to fill an unexpired term will be appointed to the remainder of such terms. The Chairperson shall be appointed by the President. The term of office for the Chairperson shall be two years, renewable by appropriate action of the President. If a vacancy occurs on the Commission, the President shall make an appointment to fulfill the term. Any member appointed to fill a vacancy occurring prior to expiration of the term for which his or her predecessor was appointed shall serve for the remainder of such term. Members may serve after the expiration of their terms until their successors have taken office.The heads of executive departments and agencies shall, to the extent permitted by law, provide the commission with such information as it may require for purposes of carrying out its functions.The Commission may conduct inquiries, hold hearings and establish subcommittees, as necessary. The Commission is authorized to solicit information form relevant human research subject groups. The Commission is authorized to conduct analyses and develop reports or other materials. In order to augment the expertise present on the Commission, the Secretary of Health and Human Services is also authorized to contract for the services of non-governmental consultants who may conduct analyses, prepare reports and background papers or prepare other materials for consideration by the Commission, as appropriate.In order to avoid duplication of effort, the Commission is encouraged to review the deliberations of other entities. The Commission may incorporate or otherwise use the results of the deliberations of other entities, as it deems appropriate. The Assistant to the President for Science and Technology and the Secretary of Health and Human Services shall be notified upon establishment of each subcommittee, and shall be provided information on the name, membership (including chair), function, estimated duration of the subcommittee, and estimated frequency of meetings. To the extent permitted by law, the subject to the availability of appropriations, the Department of Health and Human Services (DHHS) shall provide NBAC with such funds as may be necessary for the performance of its functions. Management and support services shall be provided by the DHHS.MeetingsMeetings of the Commission shall be held up to 12 times a year at the call of the Chairperson.Meetings of the subcommittee(s) shall be convened as necessary. A Federal Government official shall be present at all meetings.Meetings shall be open to the public except as determined otherwise by the Assistant to the President for Science and Technology and the Secretary of Health and Human Services. Advance notice of all meetings shall be given to the public.Meetings shall be conducted, and records of proceedings kept, as required by applicable laws and Federal regulations.CompensationMembers may be compensated at a rate not to exceed the maximum pay authorized by 5 U. S.C. 3109, plus per them and travel expenses as in accordance with standard government travel regulations.Annual Cost EstimateThe estimated annual cost for operating the National Bioethics Advisory Commission is $3,000,000.ReportsReports by the National Bioethics Advisory Commission on specific issues shall be submitted to the National Science and Technology Council, chaired by the President, and then to the appropriate committees of Congress, and other appropriate entities. The Commission may specifically identify the Federal department, agency or other entity to which particular recommendations are directed and request a response from the Federal department, agency or other entity within 180 days of publication of such recommendation. Executive summaries of each report of the Commission shall be published in the Federal Register or on the World Wide Web. Such summaries shall specifically list the department, agency, or other entity to which any recommendations are directed and the date by which such responses are expected.An annual report shall be submitted to the National Science and Technology Council and the appropriate committees of Congress. It shall contain, at a minimum, (1) the Commission’s function; (ii) a list of members and their business addresses; (iii) the dates and places of meetings; (iv) a summary of the Commission’s activities during the year; (v) a summary of the Commission’s recommendations made during the year; and (vi) a summary of responses made by departments, agencies, or other entities to the Commission’s recommendations during the year.General ProvisionsNotwithstanding the provisions of any other Executive Order, the functions of the President under the Federal Advisory Committee Act that are applicable to the Commission, except that of reporting annually to the Congress, shall be performed by the Secretary of Health and Human Services, in accordance with the guidelines and procedures established by the Administrator of General Services.Termination DateUnless renewed by Executive Order prior to its expiration, this National Bioethics AdvisoryCommission will terminate on October 3, 2001.Approved:OCT 20, 1999 /s/ Donna E. Shalala
50 Id.
51 Id.
52 Id.
53 National Bioethics Advisory Commission website, http://www.georgetown.edu/research/nrcbl/nbac/pubs.html
54 Id. At http://www.georgetown.edu/research/nrcbl/nbac/pubs/cloning1/executive.htm
55 Id.
56 Id.
57 Id.
58 Id.
59 Id.
60 Executive Order 13237, November 28, 2001 Creation of The President’s Council on Bioethics
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Establishment. There is established the President’s Council on Bioethics (the “Council”).
Section 2. Mission.
a. The Council shall advise the President on bioethical issues that may emerge as a consequence of advances in biomedical science and technology. In connection with its advisory role, the mission of the Council includes the following functions:
1. to undertake fundamental inquiry into the human and moral significance of developments in biomedical and behavioral science and technology; 2. to explore specific ethical and policy questions related to these developments; 3. to provide a forum for a national discussion of bioethical issues; 4. to facilitate a greater understanding of bioethical issues; and 5. to explore possibilities for useful international collaboration on bioethical issues.
b. In support of its mission, the Council may study ethical issues connected with specific technological activities, such as embryo and stem cell research, assisted reproduction, cloning, uses of knowledge and techniques derived from human genetics or the neurosciences, and end of life issues. The Council may also study broader ethical and social issues not tied to a specific technology, such as questions regarding the protection of human subjects in research, the appropriate uses of biomedical technologies, the moral implications of biomedical technologies, and the consequences of limiting scientific research.
c. The Council shall strive to develop a deep and comprehensive understanding of the issues that it considers. In pursuit of this goal, the Council shall be guided by the need to articulate fully the complex and often competing moral positions on any given issue, rather than by an overriding concern to find consensus. The Council may therefore choose to proceed by offering a variety of views on a particular issue, rather than attempt to reach a single consensus position.
d. The Council shall not be responsible for the review and approval of specific projects or for devising and overseeing regulations for specific government agencies.
e. In support of its mission, the Council may accept suggestions of issues for consideration from the heads of other Government agencies and other sources, as it deems appropriate.
f. In establishing priorities for its activities, the Council shall consider the urgency and gravity of the particular issue; the need for policy guidance and public education on the particular issue; the connection of the bioethical issue to the goal of Federal advancement of science and technology; and the existence of another entity available to deliberate appropriately on the bioethical issue.
Section 3. Membership.
a. The Council shall be composed of not more than 18 members appointed by the President from among individuals who are not officers or employees of the Federal Government. The Council shall include members drawn from the fields of science and medicine, law and government, philosophy and theology, and other areas of the humanities and social sciences.
b. The President shall designate a member of the Council to serve as Chairperson.
c. The term of office of a member shall be 2 years, and members shall be eligible for reappointment. Members may continue to serve after the expiration of their terms until the President appoints a successor. A member appointed to fill a vacancy shall serve only for the unexpired term of such vacancy.
Section 4. Administration.
a. Upon the request of the Chairperson, the heads of executive departments and agencies shall, to the extent permitted by law, provide the Council with information it needs for purposes of carrying out its functions. b. The Council may conduct inquiries, hold hearings, and establish subcommittees, as necessary.
c. The Council is authorized to conduct analyses and develop reports or other materials.
d. Members of the Council may be compensated to the extent permitted by Federal law for their work on the Council. Members may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in Government service (5 U.S.C. 5701-5707), to the extent funds are available.
e. To the extent permitted by law, and subject to the availability of appropriations, the Department of Health and Human Services shall provide the Council with administrative support and with such funds as may be necessary for the performance of the Council’s functions.
f. The Council shall have a staff headed by an Executive Director, who shall be appointed by the Secretary of Health and Human Services in consultation with the Chairperson. To the extent permitted by law, office space, analytical support, and additional staff support for the Council shall be provided by the Department of Health and Human Services or other executive branch departments and agencies as directed by the President.
Section 5. General Provisions.
a. Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.), may apply to the Council, any functions of the President under that Act, except that of reporting to the Congress, shall be performed by the Secretary of Health and Human Services in accordance with the guidelines that have been issued by the Administrator of General Services.
b. The Council shall terminate 2 years from the date of this order unless extended by the President prior to that date.
c. This order is intended only to improve the internal management of the executive branch and it is not intended to create any right, benefit, trust, or responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person.
George W. BushThe White House, November 28, 2001. Federal Register date: November 30, 2001.Federal Register page: 66 FR 59851.
61 Id.
62 Human Cloning and Human Dignity: An Ethical Inquiry; The President’s Council on Bioethics, Washington, D.C., July 2002, www.bioethics.gov
63 Id.
64 Id.
65 Id. Chapter Five, The Ethics of Cloning-to-Produce-Children
66 Id.
67 Id.
68 Id.
69 Id.
70 Id.
71 Id.
72 Id.
73 Id.
74 Id.
75 Id.
76 Id.
77 Id.
78 Id. Chapter Seven, Public Policy Options
79 Id. Chapter Eight, Policy Recommendations
80 Id.
81 Id.
82 Id.
83 Id.
84 Id.
85 Id.
86 Id.
87 Id.
88 Id.
89 Id.
90 Madigan, Timothy J., A Clone Can Exists With Full Human Dignity, essay contained in The Ethics of Human Cloning, William Dudley, Ed., Greenhaven Press, 2001, p.39
91 Wilson, James Q., Only Married Couples Should Be Allowed to Clone, essay contained in The Ethics of Human Cloning, William Dudley, Ed., Greenhaven Press, 2001, p.42
92 Id.
93 Id.
94 United Church of Christ, Statement of the Committee on Genetics, Cleveland, reprinted in Cloe-Turner, Human Cloning p. 147-151
95 Id.
96 In Vitro Veritas, Cahill, Stephanie Francis, ABA Journal Report, 2/22/02 regarding the case of Chambers v. Chambers CN00-09493
97 Chambers v. Chambers, Delaware Family Court No. CN00-09493
98 Madigan, supra, Note 110 at 39
99 Robertson, John A., When Cloning is Safe and Effective, essay contained in Human Cloning: Science, Ethics and Public Policy, ed. by Barbara MacKinnon, University of Illinois Press, 2000
100 Id. at 138
101 Id. at 141
102 Id. at 142
103 Id.
104 The Universal Declaration on the Human Genome and Human Rights, signed in 1997 by the 187 members of UNESCO, proscribed practices contrary to human dignity, such as cloning. The Council of Europe drafted a protocol, The Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings. Bonnickson, Andrea L., Crafting Human Cloning Policies, contained in MacKinnon, Barbara, ed. Human Cloning: Science, Ethics and Public Policy, University of Illinois Press, 200, p. 120-121. These declarations and protocols are only some of the legal hurdles to cloning.
105 See U.S. Const., Amendments XVIII (1919) and the repeal in Amendment XXI (1933). It took 14 years, the rise of organized crime, and scores of revenue men and “G” men to realize that the sale and consumption of liquor could not be stopped.
106 Gaiman, Neil, American Gods, William Morrow, 2001, pg. 252, a novel exploring an epic battle between the new American Gods of technology, prosperity, and consumption versus the older pantheon of gods from time immortal. Basically a contemporary essay on human frailty, told through the guise of a road journey of gods.
107 Fukuyama, Francis, Our Post Human Future: Consequences of the Biotechnology Revolution, Farrar, Straus and Giroux, N.Y., 2002, pg. 187-191.
108 Davis, supra, Note 52 at 593. Dr. King, testifying for Junior Davis, defined a preembryo as an embryo up to 14 days after fertilization. After that time, the cell begins the process of differentiating into the various parts that make up an individual.
109 Machiavelli, Niccolo, The Prince, p. 21
110 Boulding, Kenneth E., Beyond Economics: Essays on Society, Religion, and Ethics, University of Michigan Press, Ann Arbor, Michigan, 1970
111 Judge Learned Hand, Ladies Home Journal, May 1954

The Healing Tree

Below is a paper from my friend’s law class on globalization. I chose the topic because of my own personal interest and because much of what my father did/does revolves around this topic, as well (it’s how we met). My Dad worked with the governments of Costa Rica, Jordan, Africa, Australia, and Sri Lanka, among others. Since this topic was a stretch for her, please forgive any mistakes, inconsistencies and other errors.

The Healing Tree

Can sustainable renewable forestry development have a positive impact on global concerns?

The forest is a peculiar organism of unlimited kindness and benevolencethat makes no demands for its sustenance and extends generously the products of its life and activity; it affords protection to all beings.1

Drs. Hans Gregersen and Allen Lundgren of the University of Minnesota’s Forestry For Sustainable Development Program have spent decades on international forestry sustainable development, what it means, and how it can positively impact global concerns and increase quality of life, regardless of how “quality” is defined by various peoples.

They define sustainable development as “development involving changes in the production and/or distribution of desired goods and services which result, for a given target population, in an increase in welfare that can be sustained over time.”2

The elements of sustainable development are (1) economic, that is meeting the basic needs of the human population and improving their well-being; (2) ecological/environmental, or maintaining the productivity of the natural resources while also maintaining its integrity and (3) social/political, which is achieving an acceptable level of intergenerational equity and social justice.3

One of the most widely accepted and simplistic definitions is that produced in 1987 by the World Commission on Environment and Development (WCED),4 otherwise known as the Brundtland Commission: “economic and social development that meets the needs of the current generation without undermining the ability of future generations to meet their own needs.”5

Part I: Background

A. History of forestry – how forests and forestry practices have influenced a people’s well-being.

It is not so much for its beauty that the forest makes a claim upon men’s hearts, as for that subtle something, that quality of air that emanates from old trees, that so wonderfully changes and renews a weary spirit.6

The oldest living thing in existence is a bristlecone pine in the White Mountains of California, believed to be 4,600 years old. Forests and their products – wood, gum, oils, fruit – have been a necessity and staple of man’s culture from the time that he first learned to use tools. Wood provides fire, shelter, tools, food, and even medicine. Man cannot live without his forests. The challenge is to use the forest without destroying it.

70 million years ago, tropical forests extended from France and Germany in the north and south Africa in the south, with mostly shallow rooted vine-like trees. By 2 million years ago, the tropical forests were shrinking, the Ice Age occurred, and when it left, temperate forests were left in its place, consisted mostly of coniferous and deciduous trees.7 Currently the forests on the earth consist of three types: jungle-like hardwood forests of the tropics, coniferous forests of the cold, northern climes, and the mixed conifer/hardwood forests of the temperate zones.8

From the days of the pharaohs, wars have been waged to secure the rights to timber, and the oils and gums they produced.9 Sumerian and Assyrian kings sent logging expeditions into far-distant places to get timber for building.10 Forests were and are a valuable asset, worth acquiring and protecting. But even then, trees were seen by some as things to be protected and preserved. The poet Ovid wrote that during the Golden age, before civilization began, “not yet had the pine tree been felled on the mountainside.”11 But the forests were needed, and the great civilizations of the ancient world would never have emerged without wood sources. But as the ancient world fell, and the Dark Ages began, the forests began to regenerate. This had been noted before by the prophet Isaiah after the death of an ambitious Assyrian king: “The cypress, the cedars of Lebanon rejoice. They say, now that you have been laid low, no one comes up to fell us.”12

The ancient Romans divided the forest in three types: Those used for firewood were cut annually, another type was used for pastureland and for construction timber, and the last category were the huge forests that belonged to the state and were not cut regularly.13 The forests began their gradual decline under the yoke of civilization. Using Germany as a model, we can follow the gradual changes in forests and forestry practices. Until the advent of Benedictine monasteries in the 8th century, the forests were used only minimally. From 500-800 A.D., the first penetration of the dense virgin forests began.14 The monks built monasteries with the wood of the ancient forests, and at times, felled giant trees, such as the great oak of Geismar, sacred to Thor, in an effort to eradicate the pagan beliefs of the native people, many of which included tree worship. The legend is that when Boniface, an English monk, decided to fell the great oak of Geismar to get rid of the poeple’s allegiance to Thor, the first blow of his axe caused a mighty wind to blow, shaking the great tree, which fell, breaking into four pieces. The local people, shaken by this, gave up their gods and the wood of the tree was used by Boniface to build a chapel to St. Peter.15

In the early middle ages, the forests were communal, and the people used the timber to build houses, collect firewood, and hunt in their vast preserves.16 But shortly after, around 800 A.D., the local nobles began to establish imperial forest reserves and as the kings increased their power, they took over the forests claimed by the nobles. However, in those days, the forests were at times considered nuisances: they left little land to farm and live on, made travel difficult, and harbored roving packs of wolves. By the 9th century the forests began to be cleared and the land cultivated, with the exception of the forest preserves.

In the 13th century, what is now the Black Forest was owned by the Count of Eberstein. An ardent Crusader, he mortgaged a large portion of his forest to finance his crusading efforts to a group of woodsmen, called rafters – they cut the trees and floated the logs down the rivers to Holland where they were sold to shipbuilders at a good price. Forests had become a commercial prize. When the Count died in the Crusades, leaving no heirs, the rafters retained the forest, despite legal machinations by the ruler of the State of Baden. The ownership of that 12,000 acre tract has remained “in the family”, making it the only forest in the world in a single private ownership, that has been producing for over 700 years.17

In the period up to the 13th century, the people saw the forests as obstacles to cultivation and development and used the forests wastefully.18 Because of this vast clear-cutting, wood was becoming scarce, and the quantity of wood that could be cut per family was limited, and cutting of live wood for fuel was often prohibited. In addition, the forest rights of the kings began to be transferred to local chiefs, who guarded them fiercely to protect the game, which ked to overgrazing and overbrowsing. By the 14th century, the clearing of the forests slowed,19 and in 1557, King Ferdinand I signed a grand forestry ordinance, allowing for only the oldest, most diseased trees to be felled.20 To ensure good hunting, the Germanic estate owners began to hire game managers to manage the forests and the game, to ensure optimal game, without the overbrowsing of earlier years. They became known as “Forst-und Jagtmeisters,” forest and hunt masters. Since the Germanic states were not united until 1871 under Bismarck, there was no need for an overall forest policy, especially since Germany was not a sea-power and had no need to ensure the vast supplies of timber needed for ship-building.21

In India, under colonial rule, the British borrowed forestry practices from Germany and France and used them in managing India’s more tropical forests. Many of those policies and procedures are still used today, showing an early type of globalization. The use of practices and adapting them to foreign places with differing needs was the start of international forestry practices and procedures.

B. Current standard forestry practices – looking at current standard forestry practices here in the U.S. and abroad, and what laws are in place for forestry practices.

God has cared for these trees, saved them from drought, disease, avalanches, and a thousand tempests and floods. But he cannot save them from fools.22

It is difficult to place a monetary value on the many vital services that trees provide. However, the California Department of Forestry and Fire Protection calculates that a single tree that lives for fifty years will contribute services worth nearly $200,000 (in 1994 dollars) to the community during its lifetime. This includes providing oxygen ($31,250), recycling water and regulating humidity ($37,000), controlling air pollution ($62,500), producing protein ($2,500), providing shelter for wildlife ($31,250), and controlling land erosion and fertilizing the soil ($31,250).23

Care and management of this valuable resource is what forestry is dedicated to. Different models have been used over the years, some have succeeded, and others failed. Changes to the forestry practices are made as they prove to work or create more harm, for example, the Forest Service24 is currently struggling with its fire policies. The old notions of putting out all forest fires are gradually giving way to the belief that it is better to allow small controlled burns to clear out undergrowth and stimulate species that only germinate through intense heat.25 But even this idea, while sound and seemingly obvious, has its detractors, who point to fires that have gotten out of control. The 2002 fire season was one of the worst in modern history. More than 7.1 million acres burned – more than twice the annual 10-year average. These fires caused the death of 21 firefighters, drove tens of thousands of people from their homes, and destroyed more than 2,000 buildings. These fires also destroyed hundreds of millions of trees, devastated habitat, and severely damaged forest soils and watersheds for decades to come. 26

It is this kind of devastation that led to the President’s Healthy Forests Initiative.27 President Bush traveled to Oregon August 22, 2002 to announce his new Healthy Forests Initiative. The Bush Administration will significantly step up efforts “to prevent the damage caused by catastrophic wildfires by reducing unnecessary regulatory obstacles that hinder active forest management;” and work with Congress to pass legislation that addresses the unhealthy forest crisis by expediting procedures for forest thinning and restoration projects.28

Management of the forests is critical to the planet. According to the National Geographic, the fragile balance of plants and animals took millions of years to develop. Thousands of species are disappearing each year due in large part to human influences like habitat destruction, introduction of invasive species, and overharvesting. “If we continue reducing Earth’s biodiversity at this rate, the consequences will be profound. The web of life connects the smallest bacterium to the giant redwood and the whale. When we put that web in peril, we become agents of calamity.”29

C) Sustainable development plans – What are the current sustainable development models.

The best friend on earth of man is the tree. When we use the tree respectfully
and economically, we have one of the greatest resources on the earth.30

Of course others take a different approach. Ronald Reagan’s famous saying while he was governor of California “a tree is a tree – how many more do you need to look at” illustrates this point beautifully. Ignorance and greed are the two primary factors in working against sustainable development.

The Kyoto Protocol31 states that each party shall “promote sustainable forms of agriculture in light of climatic change,” making the world a party to sustainable development. Although forests are not specifically addressed in the Protocol, silviculture, defined as the care and cultivation or forest trees (forestry) can be easily viewed as a form of agriculture, and thus fit under the requirements of the Kyoto Protocol.

The first problem is with the definition of sustainable development. What is it? According to Allen Prescott32 the phrase is too simplistic for a complex and important problem. Sustainable development “bridges everything we hold dear – how do we survive, how do we function as families, as a society, how do we leave the planet as it was when we received it?” According to Prescott, development is something that meets the needs of all interest groups and achieves a social and economic benefit for them. Sustainable development must include the entire biosphere, and sustainable relationships between the social groups that exist. “Sustainable development is a process of social and economic betterment that satisfies the needs and values of all interest groups while maintaining future options, conserving biological resources and diversity.”33

Sustainable development must be profitable, expand and stabilize the labor force and economy, maintain and strengthen community identity by reducing conflicts and increasing compatibility, be supportive of local cultural norms and values, and be compatible with ecological processes and biological diversity, preserving diverse ecosystems, gene pools, and species.34

According to W.E. Rees,35 sustainable development is positive socioeconomic change that doesn’t undermine the ecological or social systems. Successful implementation requires integrated policy, planning, and social components (note that his paper comes out of the Centre for Human Studies – i.e. sustainable development is as much about peoples as it is about ecology and science). Sustainable development to Rees must achieve specific ecological, social and economic objectives, imposing limits on consumption, while initiating development. It requires governmental oversight and intervention, but also the cooperation of the private sector, and needs judicial integration, education, and open political processes.36

In sustainable development of forests, the major problem besides climatic change and chemical pollution, along with introduced species that can threaten older indigenous ones, is over-harvesting, or the taking of trees at a higher rate than can be sustained by the natural reproductive or intentional reproduction of the species being harvested.

Successful timber management for sustainable development needs two conditions: a rise in timber prices (scarcity increases) so that management becomes profitable, and government initiated and instituted programs of land classification, allocation, regulations to guide and stabilize land use, and incentives to make sustained yield attractive to industry. Scarcity alone will not lead to effective management – indeed the opposite occurs. As timber becomes scarcer, and thus more valuable, it leads to more rapid timber harvesting.37 This can lead to such intensive claiming or timber that sustainable development becomes nearly impossible, as there are little or no resources left. This has happened in some of the African rainforests.38 What is needed is a policy environment that encourages industry to practice sustainable contributions of forests.

However, one of the main sources of deforestation is not industry, but the “slash and burn” farmer.39 But that farmer is at the mercy of economic pressures he cannot control. The correct response to this problem lies in the government, far from the farmers themselves. For example, the best way for Brazil to stem the settlement and deforestation of the Amazonian rain forests is to engage in land reforms in the southern territories, and provide more sustainable forms of agricultural living for the farmers.40

Part II: What Does the Future Hold?

A. International forestry organizations – what are the organizations that influence and shape forestry practices.

The World Commission on Forests and Sustainable Development,41 in its 1999 report on Forests and Sustainable development recommended stopping the destruction of the earth’s forests, use of the world’s forest resources to improve life for poor people and for the benefit of forest-dependent communities, put public interest first and involve people in decisions about forest use, use accurate pricing of forest rights to reflect their full ecological and social values, stop harmful subsidies, apply sustainable forest management approaches to use forests without abusing them, develop new ways of measuring forest capital to know whether the situation is improving or worsening, plan for the use and protection of whole landscapes, not just the forest in isolation, make better use of our knowledge of forests and expand this information base, accelerate research and training so sustainable forest management can become a reality quickly, and make political decisions and develop new civil society institutions to improve governance and accountability regarding forest use.

The International Union of Forest Research Organizations (IUFRO), in its 2000 Report at its World Conference,42 recognized the importance of forests and the forestry profession to human, environmental, economic and socio-cultural welfare, and that it helps to alleviate poverty, and stimulates development. IUFRO recommended that they continue and expand support for research, provide the knowledge necessary to “achieve sustainable forest management within differing physical and social landscapes,” and that it should seek to reconcile “conflicting demands for wood products, environmental services and social benefits.”43 In order to further these goals, IUFRO should also seek appropriate knowledge from indigenous people. It found that its research should be directed towards forest policy-related issues in major environmental areas, and that it should strengthen its contributions to international debates and political processes.44

The International Institute for Sustainable Development45 creates policy recommendations on international trade and investment, economic policy, climate change, and natural resource management to make development sustainable. They report on international negotiations and knowledge gained through collaborative projects with global partners, which they hope results in more “rigorous research, capacity building in developing countries and a better dialogue between North and South.”46

From 2000-2005, IISD intends to promote government expenditure and taxation policies, as well as trade and investment policies that encourage sustainable development, and encourage more sustainable forms of agriculture and other natural resource use through the development of incentives and increased community participation in decision-making.47
The Center for International Forestry Research in its recent State of the World’s Forests, 2003,48 wants to “resolve issues of fundamental importance to the environment and to the achievement of sustainable development. Alleviating poverty and improving food security are closely linked to these objectives, and forests are an integral part of the solution.”49 They found that in coming years, enormous population increases, combined with growing per capita consumption, will continue to result in agricultural expansion on new lands, mostly through deforestation. Preliminary findings of an FAO study indicate that agricultural land is expanding in about 70 percent of countries, declining in 25 percent and roughly static in 5 percent.50

Forests are complex ecosystems that must be managed in a balanced and sustainable way, and one of the main challenges is to reconcile the conflicting priorities of those who depend on forests for a variety of goods and services. Trees are of critical importance in countries with low forest cover, in both urban and rural settings. Among other functions, they help combat desertification, provide basic necessities and protect biological diversity, crops, settlements and watersheds. The State of the World’s Forests 2003 emphasizes the major roles of forests in the context of climate change as a lost source of carbon dioxide when they are destroyed and as a positive source CO2 sink, when they are managed sustainably.51

CIFOR has found that in recent years the forest has undergone fundamental changes, largely as a result of restructuring, shifts in ownership patterns and recognition of the benefits that forests provide. It is expected that by 2050, 40 percent of the world’s forests will be managed or owned by communities and individuals. Forests can be a community resource, not a multinational corporate one.52 The amount of support that groups and institutions receive to increase their capacity to take advantage of emerging opportunities needs to keep pace. Recent emphasis on environmental protection, food security and poverty calls for new approaches to forestry education. Governments, private industry and non-governmental organizations (NGOs) are making efforts to curb forest crime, while policy institutions and agencies are working on analyses of its magnitude and impacts.53 CIFOR identifies some of the implementation issues, such as financing, trade, and environmentally sound technology. In response to a need in the international forest community, a group of countries, institutions and NGOs established the National Forest Programme Facility, which focuses on information exchange, knowledge sharing and capacity building and seeks to link forest policy and planning with broader national strategies, particularly those related to poverty alleviation. The World Summit on Sustainable Development54 (WSSD), held in Johannesburg in August/September 2002, recognized the significant contributions that forests make to the health of the planet and its inhabitants by noting the need for greater political commitment and better linkages with other sectors through effective partnerships.

The State of the World’s Forests 2003 discusses the relationship “between the sustainable use of forests and the conservation of biological diversity.”55 Forest practices can have different impacts on biological diversity, benefitting some while harming others. Because of the “variability of natural systems and the lack of any single measure of biological diversity, developing appropriate indicators to help monitor the effects of forest management interventions with a view to improving prevailing practices is a major challenge.”56 For sustainable forest management to include efficient conservation of biological diversity, both government action and alliances with stakeholders are needed. The exact combination of goods and services to be provided from a particular forested region should take into account resource use on a national scale and should be based on dialogues between government, industry, academic institutions, local communities and NGOs.57

Another challenge is that investment has traditionally gone towards improving wood production and processing technologies, so that other ecosystem functions and social dimensions, such as poverty alleviation, are often neglected. In many tropical countries, most forestry activities that involve a large number of people are informal, with little research. This raises the question of how the needs of small enterprises and local communities can be met, given their importance in providing basic goods, creating jobs and generating cash.58

The International Forestry Resources and Institutions59 (IFRI) (Group of Centers for Research), is an effort to establish an international network of Collaborating Research Centers (CRCs) that will: continuously monitor and report on forest conditions, plant biodiversity, rates of deforestation, activities and outcomes achieved by community organizations, local, regional, and national governments, businesses and others, and analyze how socioeconomic, demographic, political, and legal factors affect the sustainability of ecological systems. 60
IFRI has identified the problem: alarming rates of deforestation, especially in the tropical forests of Central and South America, Asia, and Africa. The world’s human population is predicted to be 10 billion by the year 2025 and 14 billion by the year 2100.61

Most tropical forests “will be entirely lost or reduced to small fragments by early in the next century.”62 Ancient forest areas are being destroyed at accelerating rates. At best, they are replaced by secondary forests which offer impoverished biodiversity, and, at worst, they are taken over by desertification. One quarter to one half of the earth’s species will become extinct by 2020.63

There are differing reasons for the cause of deforestation: commercial logging, cultivation, excessive energy consumption, and population increase. One view of the cause is usually paired with a related solution. Preservationists have often addressed the problem through “save and preserve” solutions. Taking the position that actions must be taken to preserve the old-growth forests and the diversity of plant and animal life, they argue for protected areas where certain activities, such as logging, are prohibited and species such as the spotted owl are protected.64
At the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro in June of 1992, three major policy documents were produced at the conference (the Rio Declaration,65 Agenda 21,66 and the Forest Principles67) and two conventions (the Convention on Biological Diversity68 and the Convention on Climate Change69). All of these documents proposed the adoption of international standards to regulate the use and management of natural resources – particularly forest resources, in order to enhance diversity and sustainability over time.

National policies range from changing forest commons into private land, assigning governments the responsibility of managing reserves and severely limiting access to these reserves, without regard for indigenous people, their changing environments, and methods of management of forest resources. One looming problem in the efforts to stem the rates of deforestation is that many of these programs actually “accelerate the very damage their proponents intend to reverse”70

The IFRI research program attempts to ascertain what is wrong and provide better answers to the question of how to reduce deforestation and loss of biodiversity in many different parts of the world. They have identified three problems: knowledge gaps (lack of understanding about which variables are the primary causes of deforestation and biodiversity losses), information gaps (lack of reliable data), and the need for greater assessment capabilities located in countries with substantial forestry resources. 71

The IFRI research program relies on the building of a permanent international network of CRCs. Each CRC will design a long-term monitoring plan to include:
a sample of forests located in different ecological zones, managed by diverse institutional arrangements, and located near centers of intense population growth as well as in more remote regions; conduct rigorous evaluations of projects undertaken to reduce deforestation, increase local participation, encourage eco-tourism, change forest tenure policies, implement new taxes or incentives, or in some way attempt to improve the incentives of officials and citizens to enhance and sustain forest resources and biodiversity, provide useful and rapid feedback to officials and citizens about conditions and processes in particular forests of relevance to them, conduct analyses of those policies and institutional arrangements that perform best in particular political-economic and ecological settings.72

The goals of the IFRI program are to address the issue of knowledge gaps by seeking ways to enhance interdisciplinary knowledge, to address information gaps by “providing a means to ground-truth aerial data and spatially link forest use to deforestation and reforestation”73, and to address the need for greater assessment capabilities by building the capacity to collect, store, analyze, and disseminate data in participating countries.74

There is the potential for effective organization at the local level to manage some of the smaller to medium-sized forests exists in all countries, but local participants do not uniformly provide the effort needed to organize and manage local forests, even when given formal authority. “Making investment decisions related to assets that mature over a long time horizon (25 to 75 years for many tree species) is a sophisticated task whether it is undertaken by barely literate farmers or Wall Street investors.”75

Thus, the view that anything local is better than anything organized at a national or global scale is not a useful view for a long-term effort to improve understanding of what works.

B) International forestry law – what are the international laws that impact forestry and sustainable development.

Thou shalt not destroy the trees thereof by forcing an axe against them:for thou mayest eat of them, and thou shalt not cut them down (for the tree of the field is man’s life)76

Agenda 21, the Rio Declaration on Environment and Development, and the Statement of Principles for the Sustainable Management of Forests were adopted by more than 178 governments at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janerio, Brazil, June 3-14, 1992.

Agenda 21 addresses all manner of ecological concerns, and is relevant to much of the sustainable forestry development concerns. Sections 11.1-11.40 are on combating deforestation. Although the Rio Declaration doesn’t specifically address forests and their management, the principles espoused are relevant to the issues previously discussed. It has the “goal of establishing a new and equitable global partnership through the creation of new levels of cooperation among States, key sectors of societies and people, [w]orking towards international agreements which respect the interests of all and protect the integrity of the global environmental and developmental system, [and r]ecognizing the integral and interdependent nature of the Earth, our home.”77

The Statement of Principles for the Sustainable Management of Forests78 directly addresses the issues discussed above. In its preamble is the statement that “[a]ll types of forests embody complex and unique ecological processes which are the basis for their present and potential capacity to provide resources to satisfy human needs as well as environmental values, and as such their sound management and conservation is of concern to the Governments of the countries to which they belong and are of value to local communities and to the environment as a whole.”79

The Principles state that although the States have the “sovereign right to exploit their own resources pursuant to their own environmental policies” they also have the “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”80 And that the agreed “cost of achieving benefits associated with forest conservation and sustainable development requires increased international cooperation and should be equitably shared by the international
community.”81

They recommend that financial resources be provided to developing countries to enable them to sustainably manage and develop their forest resources. Trade in forest products should be based on multilaterally agreed rules consistent with international trade law and practices, facilitating open and free international trade in forest products, and a reduction or removal of tariff barriers and impediments should be encouraged, along with the incorporation of environmental costs and benefits into market forces and mechanisms. Forest conservation and sustainable development policies should be integrated with economic, trade and other relevant policies and fiscal, trade, transportation and other policies that may lead to forest degradation should be avoided.

U.S.C.A. Title 16 : Chapter 65 Sec. 4501 provides that the focus be “[t]o achieve the maximum impact from activities undertaken under the authority of this chapter, the Secretary shall focus such activities on the key countries which could have a substantial impact on emissions of greenhouse gases related to global warming.”82

In his paper, Why is There No International Forestry Law,83 Ronnie Lipshutz, from the University of California at Irvine, argues that the “absence of a ‘third generation international environmental law’ in the form of an interstate convention dealing with tropical and temperate deforestation, and mandating sustainable forestry practices, is not the result of a lack of effort… [but is] inherent in the political economy and history of national forestry programs.”84 The programs were originally set up to conserve timber through managed production, with little attention paid to the other environmental “services” provided by forests. Domestic interests developed with concern for logging and not for the environment. This is what prevents progress on a global forest convention.85

At the United Nations Conference on Trade and Development, the International Tropical Timber Agreement was set out.86 The objectives were to provide a framework for international cooperation and policy development among all members with regard to the world timber economy, provide a forum for promotion of non-discriminatory timber trade practices, to contribute to the process of sustainable development, to enhance the capacity of members to implement a strategy for achieving exports of tropical timber and timber products from sustainably managed sources by the year 2000, to expand and diversify international trade in tropical timber from sustainable sources, to improve market intelligence and greater transparency in the international timber market, to promote increased processing of tropical timber from sustainable sources to advance their industrialization and increasing employment opportunities and export earnings.

In addition, they wanted to encourage members to support and develop industrial tropical timber reforestation and forest management activities as well as rehabilitation of degraded forest land, with due regard for the interests of local communities dependent on forest resources and improve marketing and distribution of tropical timber exports from sustainably managed sources.87

C) What are global concerns? – What are the global concerns that face the peoples of the world and how do they differ from area to area.

The great French Marshall Lyautey once asked his gardener to plant a tree. The gardener objected that the tree was slow growing and would not reach maturity for 100 years. The Marshall replied, “In that case, there is no time to lose; plant it this afternoon!”88

Global concerns include poverty, the economy, biodiversity, deforestation and desertification, global warming, industrial pollution, and the preservation of local and indigenous populations and cultures, while allowing growth as needed or desired. Interpreting the Brundtland Commission’s definition of sustainable development89 leads to some clues as to what are the concerns of a global population. “Meeting the needs of the present” means satisfying economic needs, and providing an adequate livelihood, and economic security when unemployed, ill, disabled or otherwise unable to secure a livelihood. It also means satisfying social, cultural and health needs, including affordable shelter which is healthy and safe, in a neighborhood with provisions for fresh water, drainage, transport, health care, education and child development, and protection from environmental hazards, and allowing continuation of cultural traditions.90
It also includes political needs, including freedom to participate in national and local politics and in decisions regarding management and development of one’s home and neighborhood, within a framework that ensures respect for civil and political rights. Meeting those needs “without compromising the ability of future generations to meet their own needs” means minimizing the use (waste) of non-renewable resources and substituting with renewable sources when possible.91

D) How has forestry had a positive impact on global concerns – what can or what has Sustainable Forestry Development done to improve the living conditions of various peoples, improve the welfare of states, and heal an ailing planet?

If a tree is treated as a living organism, with an understanding of its vitalfunctions, it will be a constant source of profit and pleasure to men.92

Over the past few decades, many have come to realize that efforts to improve the standard of living must be harmony with the natural world, and that lack of development can be as great a threat to the ecosphere as unchecked development. Sustainable development has twin pillars: it improves the quality of human life through economic growth, improving quality of health, education and political, civil and human rights. It also conserves the earth’s “vitality and diversity” by conserving life-support systems, conserving biological diversity, sustains renewable resources, minimizes depletion of non-renewable resources, and keeps us within the earth’s carrying capacity.93

According to statistics provided by the World Forestry Congress 2003,94 of the 6.2 billion people on the planet, 25% (1.5 billion) depend to varying degrees on the forest’s resources for their livelihood, 350 million people living in or near dense forest depend highly on it for their subsistence or livelihood, forests cover 30% of the Earth’s landmass, are home to 80% of the earth’s biodiversity, and play essential ecological roles. Under the combined effect of demographic growth and deforestation, the per capita forest cover is expected to drop 25% by 2025 and planted forests constitute 5% of the world’s forest cover and produce 35% of all wood harvested.

With these statistics in mind, there is no question but that practices and policies, particularly at an international level, can greatly alter and improve the planet. By increasing planted forests, which now are only about 5%, we can reduce the percentage of wood harvested from non-planted, old-growth forests, while providing a means for the people to make a living. Increasing our overall forest cover by creating not only renewable resource forests whereby we plant and harvest at a steady rate, but by reforestation greater than harvesting, we can increase our CO2 sinks to absorb the greenhouse gases, and reduce global warming.

One issue that has attracted renewed attention in recent years is the potential of forests to alleviate poverty, particularly in developing countries. Forests can help rural people rise out of poverty.95 Research is needed, however to show where “forest conservation and poverty alleviation converge as policy goals, and where they diverge.”96 Some of the changes that would help to create an environment favorable to alleviating poverty include “decentralization of authority, more secure forest tenure, better governance, increased access to markets; new technologies; and a greater willingness of society to pay for environmental services. Maximizing this potential requires, among other approaches, establishing a people-centered agenda, removing regulatory restrictions; creating partnerships between poor people and forest enterprises; and integrating forestry into rural development and poverty reduction strategies.

One simple positive sign of a changing global perspective is the recent statement by Home Depot in January of 200397 that it is successfully reducing its purchase of Indonesian lauan, a tropical hardwood used in 70% of doors, as originally planned in a 1999 report. Home Depot announced it will focus on buying redwood from two suppliers that are committed to sustainable forestry.98 The company hopes to use its buying power to induce countries and suppliers to adopt sustainable practices. And according to its report, it is working. The number of vendors supplying certified wood products (grown under sustainable forestry systems) has grown from 5 in 1999 when they adopted the policy to 40 in 2002.99

Home Depot is the largest supplier of FSC100 certified wood in the U.S. Sales of certified wood products have jumped from $15 million in 1999 to $250 million in 2002. Home Depot also claims that all cedar purchased comes from 2nd or 3rd generation forests, thus sparing the old-growth forests. Home Depot has not eliminated its purchases of lauan completely, taking the position that they can more effectively promote sustainable forestry practices if they use purchasing leverage. Thus, the refusal to buy lauan gives no incentive to change practices, and harms the local economy, but a potential order if sustainable practices are used is a “lure” to change policies, while providing income to poverty stricken nations.

The key is to educate the global population on the benefits of sustainable development and the dangers of unchecked development, which can lead to rapid deforestation and desertification, as well as bioloss as shown brilliantly in The Lorax:

“But those trees! Those trees!
Those Truffula Trees!
All my life I’d been searching
for trees such as these….
Now, chopping one tree at a time
was too slow.
So I quickly invented my Super-axe-hacker
which whacked off four Truffula Trees at one smacker…
I meant no harm, I truly did not.
But I have to grow bigger. So bigger I got.
I biggered my factory. I biggered my roads.
I biggered my wagons. I biggered the loads
Of the Thneeds I shipped out. I was shipping them forth
To the South! To the East! To the West! To the North!
I went right on biggering…selling more Thneeds.
And I biggered my money, which everyone needs.”101

And we all know what happened, and the lessons learned. Its time we all learned what the Lorax knew: what we can do individually, as a nation, and as a planetary people to save this earth for future generations.

Endnotes:

1: Buddhist Sutra
2: Gregorson, Hans M., Lundgren, Allen L, et al, Contributions of Tropical Forests to Sustainable Development: The Role of Industry and Trade, Working Paper No.6, Forestry For Sustainable Development (FFSD) Program, University of Minnesota, 1990.
3: Gregorson, Hans M., Lundgren, Allen L, et al, Contributions of Tropical Forests to Sustainable Development: The Role of Industry and Trade, Working Paper No.6, Forestry For Sustainable Development (FFSD) Program, University of Minnesota, 1990.
4: WCED, Our Common Future, Report of the World Commission on Environment and Development. Oxford University Press, Oxford, England, 1988.
5: WCED, Our Common Future, Report of the World Commission on Environment and Development. Oxford University Press, Oxford, England, 1988.
6: Robert Louis Stevenson
7: Winters, Robert K and Eliza H. Winters, The Forest and Man, Vantage Press, 1974, p.22
8: Winters, Robert K and Eliza H. Winters, The Forest and Man, Vantage Press, 1974, p.23
9: Winters, Robert K and Eliza H. Winters, The Forest and Man, Vantage Press, 1974, p.16
10: Winters, Robert K and Eliza H. Winters, The Forest and Man, Vantage Press, 1974, p.16
11: Perlin, John, A Forest Journey: The Role of Wood in the Development of Civilization, Harvard University Press, 1991, Introduction, p. 25
12: Perlin, John, A Forest Journey: The Role of Wood in the Development of Civilization, Harvard University Press, 1991, Introduction, p. 25
13: Bechmann, Roland, Trees and Man: The Forest in the Middle Ages, Paragon House, 1990, p. 202
14: Klose, Franz, A Brief History of the German Forest – achievement and mistakes down the ages. Eschbron, 1985, p.15
15: Winters, Robert K and Eliza H. Winters, The Forest and Man, Vantage Press, 1974, p.215
16: Bechmann, Roland, Trees and Man: The Forest in the Middle Ages, Paragon House, 1990, p. 202
17: Winters, Robert K and Eliza H. Winters, The Forest and Man, Vantage Press, 1974, p.216-217
18: Klose, Franz, A Brief History of the German Forest – Achievement and Mistakes Down the Ages, Eschbron, 1985, p.15
19: Bechmann, Roland, Trees and Man: The Forest in the Middle Ages, Paragon House, 1990, p. 204. The Forest Ordinance of 1376, an edict by Charles V, ordered that “all cuttings will maintain seed-bearers, eight or ten per arpent [about an acre].” He also decreed that only trees that met the current need and cause the least waste were to be felled, and to choose the tree to be cut based on the size of timber needed. Stumps were to be neat and at ground level, as was still the custom at the beginning of the 20th century when a logger had to be able to have a liter of wine stand firmly on the stump. p. 205 originally noted in Sainct Yon, Les Édits et Ordinances des Roys… Paris, 1610
20: Winters, Robert K and Eliza H. Winters, The Forest and Man, Vantage Press, 1974, p.217
21: Winters, Robert K and Eliza H. Winters, The Forest and Man, Vantage Press, 1974, p.218
22: John Muir
23: http://frap.cdf.ca.gov/projects.html#Forests
24: http://www.fs.fed.us. The purposes of the Forestry Service are twofold: (1) to make sure that America’s forests and grasslands are in the healthiest condition they can be; and (2) to see to it that you have lots of opportunities to use, enjoy, and care for the lands and waters that sustain us all.
25: Remarks by Dale Bosworth, Chief of the U.S. Forest Service, to the University of Idaho, Fall 2002.
26: USDA Forest Service, Fire and Aviation Management, available at http://www.fs.fed.us/fire/
27: President Bush’s Healthy Forests Initiative, available at http://www.whitehouse.gov/infocus/healthyforests/sect1.html
28: President Bush’s Healthy Forests Initiative, available at http://www.whitehouse.gov/infocus/healthyforests/sect1.html
29: From the Biodiversity insert in National Geographic, February, 1999, Vol. 195, No. 2.
30: Frank Lloyd Wright
31: Kyoto Protocol to the United Nations Framework Convention on Climate Change, 1997, Article 2.
32: Prescott, Allen R., Sustainable Development: What is it? How Do We get it?, Forest Planning Canada 5(3), 5-6.
33: Prescott, Allen R., Sustainable Development: What is it? How Do We get it?, Forest Planning Canada 5(3), 3
34: Prescott, Allen R., Sustainable Development: What is it? How Do We get it?, Forest Planning Canada 5(3), 3
35: Rees, W.E., Defining “Sustainable Development”, University of British Columbia Centre for Human Studies Research Bulletin, University of British Columbia, 1989, Rees, William E., Sustainable Development and the Biosphere: Concepts and Principles, University of British Columbia, Teilhard Studies 1990, appearing condensed in The Ecology of Sustainable Development, The Ecologist, 20:1:18-23, Jan/Feb 1990
36: Rees, W.E., Defining “Sustainable Development”, University of British Columbia Centre for Human Studies Research Bulletin, University of British Columbia, 1989, p. 3
37: Gregorson, Hans M., Lundgren, Allen L, et al, Contributions of Tropical Forests to Sustainable Development: The Role of Industry and Trade, Working Paper No.6, Forestry For Sustainable Development (FFSD) Program, University of Minnesota, 1990.
38: Grut, Mikael, Economics of Managing the African Rainforest, paper for the Thirteenth Commonwealth Forestry Conference, 1989.
39: FAO (Food and Agriculture Organization of the United Nations and UNEP (United Nations Environment Programme), Tropical Forest Resources, Rome/Nairobi, 1982
40: Myers, Norman, Tropical Forestry for Sustainable Development, Working Paper No.7, Forestry For Sustainable Development (FFSD) Program, University of Minnesota, 1990.
41: Summary Report: World Commission on Forests and Sustainable Development,
Eds.Ajit Krishnaswamy and Arthur Hanson, the World Commission on Forests and Sustainable Development, 1999, p. 2
42: Forests and Society : The Role of Research, Congress Report, V.IV, XXI IUFRO World Congress 2000,7-12 August 2000, Kuala Lumpur, Malaysia
43: Forests and Society : The Role of Research, Congress Report, V.IV, XXI IUFRO World Congress 2000,7-12 August 2000, Kuala Lumpur, Malaysia
44: Forests and Society : The Role of Research, Congress Report, V.IV, XXI IUFRO World Congress 2000,7-12 August 2000, Kuala Lumpur, Malaysia, p. 129
45: International Institute for Sustainable Development Strategic Priorities, available at
http://www.iisd.org
46: International Institute for Sustainable Development Strategic Priorities, available at
http://www.iisd.org/about/
47: International Institute for Sustainable Development Strategic Priorities, available at
http://www.iisd.org/about/
48: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003.
49: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003. Summary
50: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003. Summary
51: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003. Summary
52: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003. Summary
53: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003. Summary
54: United Nations World Summit on Sustainable Development, Johannesburg, 2002, available at http://www.johannesburgsummit.org/flat/
55: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003. Summary
56: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003. Summary
57: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003. Summary
58: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003. Summary
59: International Forestry Resources and Institutions, Indiana University, available at http://www.indiana.edu/~ifri/
60: International Forestry Resources and Institutions, Indiana University, available at http://www.indiana.edu/~ifri/
61: United Nations Population Fund (1989) projections based on current levels of birth control use. The estimated population in the World Bank’s World Development Report (1993: 268-69) for 2025 is, however, a more modest 8.3 billion. It is not unusual to find discrepancies this large in projected population figures given different assumptions about initial starting conditions and rates of change.
62: Task Force on Global Biodiversity 1989, 3
63: Lovejoy, Thomas E., A Projection of Species Extinctions. In The Global 2000 Report to the President: Entering the 21st Century, G. O. Barney (Study Director), 328-31, Washington, D.C., 1980, Council on Environmental Quality, U.S. Government Printing Office and Ehrlich, Paul R., and Anne H. Ehrlich, Extinction: The Causes of the Disappearance of Species, Random House, 1981. They estimate that between 1990 and 2020, between 5 to 15 percent of all species would be lost.
64: International Forestry Resources and Institutions, Indiana University, available at http://www.indiana.edu/~ifri/
65: Rio Declaration on Environment and Development, available at http://www.unep.org/Documents/Default.asp?DocumentID=78&ArticleID=1163
66: Agenda 21, available at http://www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm
67: Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, available at http://www.un.org/documents/ga/conf151/aconf15126-3annex3.htm
68: Convention on Biological Diversity, available at http://www.biodiv.org/convention/articles.asp
69: Framework Convention on Climatic Change, available at http://unfccc.int/resource/index.html
70: Korten, Frances F., The High Costs of Environmental Loans, Asia Pacific Issues No. 7. Hawaii: East-West Center, 1993, p.8
71: Ostrom, Elinor and Mary Beth Wertime , IFRI Research Strategy, 1993
72: Ostrom, Elinor and Mary Beth Wertime , IFRI Research Strategy, 1993
73: Ostrom, Elinor and Mary Beth Wertime , IFRI Research Strategy, 1993
74: Ostrom, Elinor and Mary Beth Wertime , IFRI Research Strategy, 1993
75: Ostrom, Elinor and Mary Beth Wertime , IFRI Research Strategy, 1993
76: Deuteronomy 20:19
77: Rio Declaration on Environment and Development, available at http://www.unep.org/Documents/Default.asp?DocumentID=78&ArticleID=1163
78: Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, available at http://www.un.org/documents/ga/conf151/aconf15126-3annex3.htm
79: Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, available at http://www.un.org/documents/ga/conf151/aconf15126-3annex3.htm, preamble (f)
80: Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, available at http://www.un.org/documents/ga/conf151/aconf15126-3annex3.htm, princliples/elements 1(a)
81: Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, available at http://www.un.org/documents/ga/conf151/aconf15126-3annex3.htm, princliples/elements 1(b)
82: U.S.C.A. Title 16 : Chapter 65 Sec. 4501. Sec. 4501. – Forestry and related natural resources
83: Lipshutz, Ronnie D., Why Is There No International Forestry Law? An Examination of International Forestry Regulation, both Public and Private, Paper prepared for the Conference on Third Generation International Environmental Law, UC-Irvine, Oct. 4-7, 1999
84: Lipshutz, Ronnie D., Why Is There No International Forestry Law? An Examination of International Forestry Regulation, both Public and Private, Paper prepared for the Conference on Third Generation International Environmental Law, UC-Irvine, Oct. 4-7, 1999, abstract
85: Lipshutz, Ronnie D., Why Is There No International Forestry Law? An Examination of International Forestry Regulation, both Public and Private, Paper prepared for the Conference on Third Generation International Environmental Law, UC-Irvine, Oct. 4-7, 1999
86: International Tropical Timber Agreement 1994, International Tropical Timber Organization (ITTO)Nishi-ku, Yokohama 220, Japan, July 1992

87: International Tropical Timber Agreement 1994, International Tropical Timber Organization (ITTO)Nishi-ku, Yokohama 220, Japan, July 1992, Chapter I, Article 1.
88: As told by John F. Kennedy, March 1963, in an address at UCLA Berkeley
89: World Commission on Environment and Development (WCED), otherwise known as the Brundtland Commission: “Economic and social development that meets the needs of the current generation without undermining the ability of future generations to meet their own needs”, 1987.
90: Dalal-Clayton, Barry, and Stphen Bass, National Strategies for Sustainable Development: the Challenge Ahead Draft: 17 March 2000, a background paper prepared in support of Donor-Developing Country Dialogues on National Strategies for Sustainable Development – an initiative of the OECD/DAC Working Party on Development Cooperation and Environment (October 1999 – February 2001).
91: Id.
92: N.T. Mirov
93: Carew-Reid, Jeremy, et al., Strategies for Sustainable Development: A Hand book for Their Planning and Implementation, IUCN, IIED, Earthscan Publications, 1994, p.14-15
94: XII World Forestry Congress, September 21-28, 2003, Québec, Montreal
95: Strategies for Sustainable Development: Can country-level strategic planning frameworks achieve sustainability and eliminate poverty?, a discussion paper prepared by the Sustainable Development Unit (DFID), IIED and CAPE ODI.
96: CIFOR (Center for International Forestry Research), State of the World’s Forests 2003, Rome, March 2003. Summary
97: Home Depot to Sell Less Wood From Endangered Species, The Forestry Source, The Society of American Foresters, Feb. 2003, Vol. 8, No.2
98: Home Depot to Sell Less Wood From Endangered Species, The Forestry Source, The Society of American Foresters, Feb. 2003, Vol. 8, No.2
99: Home Depot to Sell Less Wood From Endangered Species, The Forestry Source, The Society of American Foresters, Feb. 2003, Vol. 8, No.2
100: The Forest Stewardship Council, centered in Bonn, Germany, is “introducing an international labeling scheme for forest products, which provides a credible guarantee that the product comes from a well-managed forest,” available at http://www.fscoax.org/principal.htm
101: Dr. Suess, The Lorax, Random House, 1971

The Benko Gambit

Here is the first of a friend’s “topic” blogs – she gave me enthusiastic permission to showcase them as they pertain to my interests. Unfortunately, the footnotes didn’t transfer. If anyone wants a specific cite, I can provide it. Next up “Property or Progeny: the Legal Status of a Human Clone.”

The Benko Gambit1

Games Theory and the Law

“Life is a form of obsessive play.”2

Game theory was initially developed in 1928 by John Von Neumann and Oskar Morgenstern as an approach to economic problems. The theory developed over time and has broadened to include the social sciences, including political science, sociology, marketing, warfare and the law.3 As noted author Karl Popper stated;

Disciplines are distinguished partly for historical reason and reasons of administrative convenience…and partly because the theories which we construct to solve our problems have a tendency to grow into unified systems. But all this classification and distinction is a comparatively unimportant and superficial affair. We are not students of some subject matter but students of problems. And problems may cut right across the borders of any subject matter or discipline.4

Game theory has been used by lawyers intuitively since the law was first practiced, and in recent years it has become more and more deliberately used in trial preparations (including which witnesses to call, which exhibits to use, and jury selection) and especially in the art of negotiating a settlement. The increasing used of alternative dispute resolution, such as arbitrations and mediations, has brought game theory to the forefront of law. This paper will give a brief overview of some of the basics and of some of the areas where game theory has been applied in the legal arena.

I. The Rules of the Game – the basics of game theory

According to one of its founders, Oskar Morgenstern, the success of game theory and its application to other disciplines is based in the fact that, unlike previous attempts to quantify social phenomena which failed, game theory is not founded in the physical sciences, which lacked the fundamental traits of social interaction (collaboration and its flip side, argument), but was taken from games of strategy, which in turn can be mathematically analyzed.5

In studying the social world, we are in need of rigorous concept. We must give precision to such terms as utility, information, optimal behavior, strategy, payoff, equilibrium, bargaining, and many more. The theory of games develops rigorous notions for all of these, and enables us to examine the bewildering complexity of society in an entirely new light. Without such precise concepts we could never hope to lift the discussion from a purely verbal state and we would forever be restricted to a very limited understanding if, indeed, we could achieve it at all.6

At the heart of game theory are two basic questions:

How should the players behave?

What should be the ultimate outcome of the game?

It should be easy to see how this correlates to the practice of law, particularly with respect to interactions between lawyers, both in a courtroom and without. These two questions lead to others: what is the “power” of a player (is it a poor client or a multi-national conglomerate), i.e. who holds the cards; to what extent can an individual affect the outcome of the game – what can the player minimally assure himself of if he receives no cooperation (i.e. “The Prisoner’s Dilemma”)?7

What are the rules of the game? Can the participants communicate with each other? Can they enter into binding agreements? Can rewards be shared with other players? What information is available to the players? And the personalities of the players must be taken into account, the mores of society (which change over time), and subjective preferences. According to Morton D. Davis,8 the most important aspect of the game is the number of players. The fewer the players, the simpler the game. The more players involved, the more complex the game and the less that game theory applies (it becomes more difficult to treat analytically).

This may explain why game theory is often used in negotiations and mediations, where fewer players are present, than in courtroom trials, with the overwhelming and changing number of players.

In a one-person game, which is the most basic, there are three types or categories: games in which nature has no active role, games where the laws of chance apply but the player is aware of the probabilities; and games where the laws of chance apply but no information is given.
In the first type, a player is simply making a choice, based on the outcome desired. The strategy chosen depends on the end result the player wishes (his utility). In the second type, the player uses the probabilities of possible events affecting his desired outcome (i.e. a farmer deciding to buy irrigation equipment takes into account his knowledge of past weather and rainfall) to achieve the optimal result. In the third type, the player makes his choice, knowing that there may be odds against him, but having no knowledge of what they might actually be.9

The next size up is the two-person game, which can be extrapolated into the basic legal paradigm of plaintiff and defendant, or two sides negotiating. There are two types of two-person games. The first is the “zero-sum” game in which wealth is neither created nor destroyed, simply transferred from one side to the other such as in poker. These games can have perfect information, or imperfect, which will lead to different strategies.10

The second type is the “non zero-sum” game, in which both players may either lose money or gain wealth (i.e. one man’s loss may NOT be another man’s gain). This can happen in situations such as union bargaining agreements in which neither side can reach agreement, and both lose. The company may have to shut down and the workers will lose their jobs.11

This paper will focus primarily on the two-person game and multi-person games in a non-perfect world, as they are the most widely used in legal situations.

According to Davis, the concept of strategy is basic to game theory. Strategy is the “complete description of how one will behave under every possible circumstance; it has no connotations to cleverness.” The number of strategies is finite. For example in chess, for each strategy used (including the Benko gambit), there is a corresponding result depending on the strategy the other player uses. These can be placed in a matrix and the outcome, win lose or draw, will be indicated. In a two-person zero-sum game of perfect information such as chess, the outcome can be known in advance. White can announce his winning strategy, and Black cannot prevent a win unless he can trick White into a deviation from his strategy. All games of perfect information are “strictly determined,” from a theorem proved by Ernst Zemelo in 1912.12

In “normal form,” the decisions are lumped together into one decision: the choice of strategy. In “extensive form,” the decisions are made one at a time. In normal form (or a simple game), the player can know the end result and thus base his/her strategy on the result desired. In extensive form, the player must analyze each decision, as it must be based on the result of the previous decision.

In a game of imperfect information, such as the child’s game of scissor, rock, paper, or in a real life negotiation, neither player knows what the other will do, but they must choose their strategies simultaneously. In this situation, the best way to approach it is to keep your strategy to yourself. In theory you can construct a matrix of strategies, but you have to assume the other player knows what strategy you have chosen. The other player can deduce your strategy based on the same logic and outguess you, and you would lose.

Knowing in advance what the other side will do can create a situation of the appearance of no-win. But the outcome of each decision from each player can be placed in a matrix, and the player should choose the strategy that has the optimal, if not perfect result. Each side will try to maximize its outcome and where they meet is called the “equilibrium point.” 13

The most classic example of game theory used in contemporary literature is the “Prisoner’s Dilemma,” first proposed by Flood and Drescher in 1950 and named by Albert Tucker shortly after.14 In the “Prisoner’s Dilemma,” the police apprehend two criminals who together have committed a serious crime. There is no direct evidence, except for the minor violation of speeding, so the prosecutor makes a proposal to each prisoner, jailed separately:
If you confess to the crime, and implicate your accomplice, I will set you free and we’ll drop the speeding charge. Your accomplice will be in prison for ten years. This offer is valid only if your accomplice does not also confess to the crime. If your accomplice also confesses, we’ll have all the proof we need, and you’ll each be jailed for five years. If neither confesses, we will have no evidence, and can only jail you on the speeding charge for one year. I am making this same offer to your accomplice.

So, if A confesses, and B does not, A gets off free, and B gets ten years. If A confesses and B does also, then each gets five years. If B confesses, and A does not, then B gets off free and A gets ten years. If neither confess, they each get one year.

A has to decide. Assuming that they have no commitment to each other, obviously each wants the best outcome for himself. If B confesses, then A knows he will be jailed for ten years if he doesn’t confess, and five years if he does. So his choice then would be to confess. If B does not confess, then A knows if he confesses he’ll be free, but if he does not confess, he’ll be jailed for a year. Therefore if B does not confess, it would be best if A confesses also. The same holds true for B. Logic demands a confession. Therefore, logically each will confess, getting five years, when if they both had not confessed, they would only have gotten one year.

Another example was used by Douglas Hofstadter in 1983. Assume one person had a bag of diamonds to sell and another had a bag of cash to buy them with. The exchange must be done in secret. If both leave a full bag, then they both are maximized. But each player will obtain a better payoff if they leave an empty bag. The seller would get either a bag of money or nothing, and the buyer would either get a diamond for free or nothing. In which case neither has lost anything. This maximizing of both strategies on an individual basis intersects at a point called the Nash Equilibrium.15

This is the Prisoner’s Dilemma. But the larger question remains: Does logic exclude rational cooperation? But what if A decides rationally and logically that not to confess would be best for both, and he knows B will also act rationally and logically, therefore it follows that neither will confess. Which logical argument is correct? According to the rules of logic, you can’t have two separate outcomes following logical paths. So therefore logically, the Prisoner’s Dilemma cannot exist. But this doesn’t take into account the irrationality of humans and the idea of mutual cooperation.

One illustration of this was in the nationally favorite reality series Big Brother II, in which four of the contestants were each offered separately money and a chance to call home. If they took the money and the call, no one else could get the call or money. If they refused, they took the chance that another would take it and they’d get nothing. If no one took the money, they all got to call home. Three of the four contestants took the offer of money and a call, and one did not. Different logic and reasoning was used by each of the contestants. One was true to her cooperative nature, and the others went for their own advantage.

Mahatma Gandhi used a unique variation of the Prisoner’s Dilemma: he neither cooperated nor defected, but used non-cooperation. Gandhi could have used defection (or violence) in his “game” against the British, but instead, by using non-cooperation, he eventually led the British to the understanding that he was honorable and reliable; although he couldn’t be trusted to use to the “rules” of the game, he could be trusted that he would always use his own rules. This strategy is more effective in building confidence in followers than a strategy of resistance.
A similar “distrategy” well known in sci-fi circles is the infamous “Kobayashi Maru” scenario from Star Trek. A game of cat and mouse used in Starfleet Academy training, no one ever beat the scenario, with the exception of a young Captain Kirk: In Kirk’s own words, he “reprogrammed the simulation so it was possible to rescue the ship.” In other words he cheated.
His response is that he “changed the conditions of the test. I got a commendation for original thinking. I don’t like to lose…I don’t believe in the no-win scenario.”16

Even scientists are getting into the picture and looking at the Prisoner’s Dilemma. Jiangfeng Du, a Chinese physicist, explores the Prisoner’s Dilemma in a new computer game with quantum rules: as is said to be true in Schroedinger’s Cat dilemma, where the cat may be equally alive or dead, the rules are changed so that each player may partly defect, and partly cooperate, the players choices are entangled. In the first iteration, one player does better than the other. In the second go-around, it is fully quantum: each player does equally well.

Similar dilemmas are faced in everyday business decisions, such as competing gas stations on price-lowering or raising, or even in operas, such as Puccini’s Tosca.17 The same holds true in the legal environment. The lawyer, judge, jury and clients all play a game. The only difference is that only one round is usually played, and the stakes vary from life itself to monetary rewards or damages. Some games are two person zero sum games, others are larger, with more players. The rest of the paper will focus on a few of the ways in which game theory is applied, and some of the problems faced in the application.

II. The Game of Life –game theory and its use in the law.

Discovery and the Prisoner’s Dilemma

The application of game theory has been used in the discovery process, both unknowingly and intentionally. Discovery can be costly, and so each side tries to determine the maximum amount needed to “win,” without going over. Game theory can provide some insights into this process. According to John K. Setear’s note in the Yale Law Journal: Discovery Abuse Under the Federal Rules: Causes and Cures, “when deciding whether to impose discovery costs on the other party, a litigant faces the ‘Prisoner’s Dilemma.’”18 Both sides have two possible strategies to pursue – make harassing discovery requests or exercise restraint. As in the Prisoner’s Dilemma, a party may gain more favorable settlement terms if he pursues the excessive discovery route; however, both sides will be worse off if they both choose that strategy. Each litigant’s costs will increase at the same rate, and the relative settlement will remain the same. And both sides will have increased costs by choosing the excessive discovery route, thus reducing their ultimate gain.19

The end result of the harassment route is similar to the Prisoner’s confessing. If one side chose to not pursue discovery, he would be at a distinct disadvantage if the other side chose to dump discovery on him. So logically, each side will choose the excessive discovery route in order to ensure that the other side doesn’t get the better of them. If the other side chooses to also do extensive discovery, then they’re even. If the other side chooses restraint, then the side choosing to overwhelm the other with discovery requests will have an advantage, and neither side wants that.

So, without some sort of outside controlling factor, discovery abuses will continue. Setear argues for the Rules: “First, they attempt to internalize some of the costs of discovery. Second, they provide the means for judges to intervene in the discovery process to prevent the unconstrained outcome of the Prisoner’s Dilemma.”20 The Rules allow two ways to intervene in the discovery process: Rules 29 and 36 encourage litigants to agree on discovery limitations or modifications, and Rule 26(c) provides for direct judicial intervention by allowing a judge, upon motion by either party, to issue a protective order limiting or prohibiting certain discovery requests.21

The Rules also help to internalize the costs of complying with discovery requests, through imposing costs on non-responsive parties, and by requiring parties to obtain information themselves that is readily available rather than forcing the other party to do it. The Rules also provide for imposition of costs on failure to adequately or truthfully answer interrogatories or requests for admissions. In addition, the Rules govern the discovery concerning experts, making sure that one party doesn’t overly benefit from the costly information gained from the other’s expert.22

Although the Prisoner’s Dilemma helps to understand and define the discovery process, judges are still reluctant to make use of the full scope of the Rules in order to minimize costs. A more stringent adherence to the Rules and the imposition of costs to the losing party on discovery motions would help alleviate the problems of the Prisoner’s Dilemma.

Game Theory and Anti-trust

“Nothing spoken or written is of any great value if the object is merely to be believed, not to be criticized and thus learn more.”23

Game theory has been increasingly used in antitrust analysis, although its role is still limited. Game theory is a favorite of economists, and when the merger guidelines were revised in 1992, game theory was at the forefront of many economic and industrial organization texts. Game theory’s influence on antitrust policy is not surprising given the strong link between economics and antitrust.

Professor Kobayashi, in his article on game theory and antitrust24 posits that there is “little reason to expect, given the current state of affairs, that game theory will play a positive role in rationalizing and clarifying the application of antitrust law.”25 Prof. Kobayashi sees the debate surrounding game theory and anti-trust as a “variant of the familiar ‘rules versus standards’ debate.”26 To Kobayashi, in a certain and errorless world, the game theory standard would be superior, but in reality, the uncertainty and imperfect enforcement make game theory too complex for ideal use.

It is a well-known tenet of game theory that the more complex the game, the less the rules apply and the less certain the outcome will be. According to Kobayashi, game theory must accurately describe behavior and performance, given a set of facts, in order to be reliably used in application in a given field. Kobayashi states that “this body of theory is close to ‘pure theory,’” and that the models have not been empirically verified.27 He feels that the conclusions drawn in game theory models tend to be “sensitive” to the problem definition and assumptions made.28

Kobayashi’s critique of game theory is based on what he sees as the weaknesses in the way economists have conducted research on organizational models. He follows Mark Blaug’s29 belief that modern economics suffers from a “reluctance to produce the theories that yield unambiguously refutable implication, followed by a general unwillingness to confront those implications with the facts.”30 Research on these types of models is characterized as “degenerating research program[s],” or those programs which are characterized by an endless addition of adjustments to accommodate new facts.31 The programs are degenerate precisely because they are able to “explain” everything, and therefore no generalizations can be drawn. “A theory that explains everything explains very little.”32

Professor Kobayashi responds to the idea that the models have a useful academic exercise basis by pointing out that the models have not been tested or subjected to meaningful empirical verification, and that absent that verification, it is premature to use these models to guide legal policy, an important point to ponder while jumping on the bandwagon of games theory.
He argues that without the empirical verification of the theories, their use should be limited, and that even if they were accurate predictors of behavior in a merger situation, there are so many models its difficult to decide which to use.

However, Kobayashi does point out that others33 suggest that “the contribution of game theory has been to illustrate complexities not recognized in older models of oligopoly behavior.”34
Tom hypothesized that considerations of these complexities make it difficult to argue the implausibility of anticompetitive outcomes, and that defendants will be less successful in avoiding antitrust litigation through the use of summary judgment motions. Kobayashi is skeptical that a decrease in successful summary judgment motions will result from the application of game theory. In looking at the Prisoner’s Dilemma, repeated applications of it might result in a cooperative outcome that is merely possible, but not necessarily the plausible outcome.

Legal Transparency and International Economic Law

William Mock wrote an article on the specialized term of legal “transparency” and its role in international economic law. As used in legal practice and theory, the term transparency means that the regulation or law and its effect and process can be seen through as easily as a clean window. If someone can understand, comply, and foresee consequences of the law then it is transparent. If not, the law is opaque.35

Transparency plays a crucial role in international economic law. It’s recognized as a key element in governmental reforms and development, such as those in emerging industrial nations as they try and gain acceptance in the world trade economy. It’s a major concept in GATT, WTO and most-favored nation status, and various treaties. Transparency has the effect of allowing businesspersons to make decisions based on all available information, rather than just on what is readily apparent. And nations are able to negotiate with other nations more effectively once they understand all the implications of economic regulation.

In the transparency model, the games of perfect information and non-perfect information are most relevant. Bridge is an example of a game of imperfect information. In the beginning, each player knows only the cards he or she holds, and not until the end of the game do they know where all the cards are. Chess is an example of a game of perfect information. Players know at all times exactly where all the pieces are on the board. There is no hidden information.36
In games of imperfect information it is necessary to analyze all information available in order to learn about the information that is hidden.37 In games of perfect information, such analysis is not necessary. In games of imperfect information, players will often signal their partners to try and convey the missing information. This is neither necessary nor possible in a perfect information game.38 In a game of imperfect information, this leads to signaling, bluffing, and deception. You can “trick” your opponent by laying a false trail. In chess, a perfect information game, deception isn’t possible. The pieces are where they stand, and the top players know it doesn’t matter what your opponent’s intentions are, it’s the potential risks and opportunities on the chess board that matter.

Mock relates game theory to transparency by introducing the concept that areas of legal regulation provide a system of players, rules and rewards, and as such are ripe for game theory. A transparent regulation equates with a game of perfect information; an opaque regulation is a game of imperfect information. In an opaque regulatory scheme, the “player” is required to seek signals from elsewhere in order to make decisions. For example, investors in developing countries will try to judge the safety of their investments from nuances (signals) of politicians and bureaucrats, rather than from the actual law or regulation.39

Information theory is a recent development that analyzes the role, process, and costs of information gathering and analysis. “Information is a valuable commodity.”40 However there are costs associated with the gathering and analysis of information. When you apply the theory of information to transparency model and games theory, the result is that the costs associated with an imperfect game become clearer. For a regulatory scheme to be transparent, the information costs must be kept to a minimum. In an opaque (imperfect) scheme, the costs of gathering information are borne by the parties involved in the transaction. These costs can often be significant, and are usually borne by the regulated party, not the government.41
For the investor, a transparent legal regime will keep his/her costs to a minimum, thus becoming the preferred investment over an opaque legal regime, which may have significant costs associated with gathering sufficient information to make an informed choice. According to Mock, “legal systems which apply the same rules to every similarly situated party and avoid[s] both confusing regulation and large grants of administrative discretion are described as embodying the Rule of Law.”42 Having a legal system that embodies the Rule of Law provides incentives for nations to adopt transparent legal regimes.

Regulatory Enforcement and Game Theory

Game theory has recently been applied to regulatory enforcement. The principles behind game theory suggest that beneficial cooperation can emerge from longstanding relationships between regulatory agencies and the industries they regulate.43

McCutcheon states that according to game theorists, the key to an effective enforcement program is for the agency to exploit the duality of being cooperative when appropriate and retaliatory when needed. However, many outside the administrative arena fear that cooperation between agency and industry.

The classic Prisoner’s Dilemma rears again. Uncertainty about the other “player’s” choice is likely to lead to the agency choosing deterrence and the business choosing evasion, even though both would be better off with mutual cooperation. According to J. Scholz,44 the agency should devise a regulatory scheme that maximizes good players by rewarding them with cooperation, applying strong deterrent measures to cheating players, and increasing incentives to reform the cheating players.

Under this scheme, strong court based enforcement policies should only be applied to the “cheaters.” To avoid the appearance of agency “capture,” Scholz suggests that agencies be subjected to close public scrutiny, such as judicial review and citizen claims. However, citizens have criticized this type of review and claim that outside scrutiny is necessary to avoid agency capture by the industry it regulates. The arrival of the citizen suit in 1970 under the Clean Air Act stemmed from the inability of agencies to enforce antipollution measures effectively.
In order to overcome some of these inherent problems, game theory has been applied. In simulations, it has been proven that playing the game over and over can lead to mutual cooperation and benefit. As long as the firm cooperates, the agency will. However, if the firm changes strategy, then the agency will do so as well. If the firm is cooperative, so is the agency. If the firm is uncooperative, then so will be the agency, and if the firm turns cooperative again, the agency will as well, as both sides are motivated by future pay-offs. This strategy can break the Prisoner’s Dilemma and bring about mutual cooperation and benefit.

The citizen suit can however put a halt to this cooperation. Under mutual cooperation strategy, the agency must be free to make the appropriate enforcement action, but the citizen suit may interfere with that process. Citizens, who might lack sufficient knowledge or information, enter the “game” and insist on deterrence when cooperation would have been more beneficial in the long run, thus putting the agency and industry back in the Prisoner’s Dilemma.

Alternative Dispute Resolution and Game Theory

“Over the next generation, I predict, society’s greatest opportunities will lie in tapping into human inclinations towards collaboration and compromise rather than stirring our proclivities for competition and rivalry.45

Alternative Dispute Resolution, or ADR, is the current popular wave in legal proceedings. It includes negotiation, mediation (including transformative, facilitative and restorative), and arbitration. Game theory is most widely relied on in the negotiation arena, but is also used in other forms of ADR.

Most of our legal conflicts are resolved through negotiation and settlement, without going through the trial process. The percentage varies, but is currently around 90-95%. Negotiation is possible in cases where the parties must cooperate to reach their goals, where they can influence each other to act in mutually beneficial ways, and when they realize that outcomes determined by others are not as preferred as those chosen by themselves.46

In negotiation, there are two basics types: competitive vs. collaborative. Competitive negotiation is about external value: Win or lose, one side gains, while the other loses. In collaborative negotiation, the emphasis is on letting both parties “win.”

Studies of the Prisoner’s Dilemma show that negotiations have two basic objectives: to achieve the party’s goals, but also to avoid being exploited.47 Playing the game repeatedly shows a strategy for avoiding exploitation and still creating cooperation. The strategy the players develop is the classic “tit-for-tat,” the same strategy used in the regulatory arena. The strategy has five rules: 1) begin cooperatively – show the other party that you desire mutual cooperation; 2) retaliate if the other side is competitive – show them that their competitiveness has negative consequences; 3) forgive if the other side becomes cooperative – signaling that mutual cooperation benefits all; 4) be clear and consistent in your approach – this way the other side knows what to expect, and parties can begin to focus on the future rather than the past; 5) be flexible – adhering to one approach beyond its effectiveness is self-limiting. This approach is nice, provocable, forgiving and transparent.48

However, some authorities argue that such a “tit-for-tat” solution might be a hindrance in bargaining and negotiating on relationship issues. To them, relationship issues do not present a Prisoner’s Dilemma and the only viable solution is cooperation.49

The zero-sum game mentioned earlier arises in various types of negotiated or arbitrated claims, such as auto accidents. An attempt is made to distribute a set amount of money from the insurance company to the party claiming injury. The amount of money stays the same, it just moves from one pocket to the other. Both sides will use the strategies mentioned earlier in order to maximize their overall gain. The negotiation process used in such claims is often called a “dance” as both parties circle around and move closer and closer to each other in a relatively fixed manner. These dances or games are games of imperfect information. Each side reveals information only in order to further his or her gain. At no time is all the information on the table for all to see. It is the equivalent of the poker player holding his cards tight to his chest, only allowing others to see when it’s to his advantage.

III. Conclusion – winning isn’t everything

As can be seen from the above, game theory at its most basic form is used throughout the legal process, much of the time unconsciously. Every player in the legal game tries to “win,” or further the interests of their side. But increasingly, some legal scholars are looking at extrapolating some of the more complex “games” into various aspects of the law, in order to gain insight into the behavior of the parties involved, to assist in furthering the interests of the parties and to help predict the outcome of various conflicts.