Lecture 10: Technology and Rights
Tension Between Rights and Technology
Encryption and terrorism
Does the right to privacy justify using practically
uncrackable encryption when this can be used
for criminal or terrorist ends?
Medical technology and the right to health care
If we accept there is a right to health care, on
what ground do we refuse new and expensive treatment to patients?
The Issue
‘Rights talk’ is central to modern day life, particularly
in the West
Technology places stress on many of the rights we
traditionally conceive of
E.g., the right to free speech
The right to privacy
How should we respond?
Limit technology?
Reconceive these rights?
Rights Talk is Everywhere
International
The Universal Declaration of Human Rights
National:
Canadian Charter of Rights and Freedoms
Public
Janeway Patients’ Bill of Rights
Private
Amazon.com Bill of Rights
Etc. etc….
A Suggestion
Overuse of rights talk has watered the concept
down
The rights guaranteed by the Canadian Charter are
not the same sort of thing guaranteed by amazon.com
To understand the clash between technology and
rights, we need to have a clear understanding of what rights are and are
not
A Short History of Rights I
Like many seemingly 'eternal'
notions, the idea of rights has altered in conception and importance over
time.
Ancient Greece & Rome – Natural Law theory focuses on natural
duties (not quite rights) of man
Roman law introduces the idea of rights, later exported to ethics
A Short History of Rights II
During the
16th through 18th centuries, natural law theories shift from a focus on duties
to a focus on rights.
First right = right to protect oneself
Hugo Grotius (1583-1645)
Thomas Hobbes (1588-1679)
A Short History of Rights III
John Locke (1632-1704) argued that men were created
with rights to life, liberty and property. A legitimate state must protect
these rights.
1689 Bill of Rights (England)
1776 The Declaration of Independence (U.S.)
"... all men ... are endowed by their Creator with
certain inalienable rights, ... among these are
Life, Liberty and the Pursuit of Happiness."
1789 Declaration of the Rights of Man (France)
A Short History of Rights IV
The idea of rights is not uncontroversial.
“The idea of rights is
nonsense and the idea of natural rights is nonsense on stilts”
Jeremy Bentham (1748-1832)
A Short History of Rights V
In the 20th century, particularly after World War
II, the idea of rights became detached from the idea of natural law and the
idea of human rights took hold.
1948 - The Universal Declaration of Human Rights
(the UN)
An influential document, although few, if any,
countries live up to all of its provisions.
Kinds of Rights
We tend to talk as though rights are rights are rights, but there
are many kinds.
Two distinctions worth keeping in mind:
Positive vs. Negative Rights
Exceptionless vs. Bounded vs. Ideal
Positive vs. Negative Rights
Negative Right
negative rights are rights of the rightholder
not to be interfered with
i.e., they tell others what they may not
do
e.g., a negative right to free speech is a right
not to be prevented from speaking
Positive vs. Negative Rights
Positive Right
Positive rights are rights of the rightholder to have something done for him/her
i.e., they tell others to do something
e.g., a positive right to free speech might require
television stations to provide airtime to those who want to make some point
about public policy
Positive vs. Negative Rights
Most initial conceptions of rights were in negative
terms, but many argue that we should think of some rights in positive terms
E.g., the right to a minimum income
the right to health care
Some would argue that the positive/negative distinction
mirrors the Left/Right Wing distinction in present-day politics
On this way of thinking, Left wingers stress positive
rights to a greater extent than Right wingers.
Exceptionless, Bounded & Ideal
Exceptionless Rights: Binding without exception.
e.g., the right not to be tortured
Bounded Rights: Binding, but only within certain bounds.
Can be overriden if
they run up against other rights.
E.g., the right to privacy
Exceptionless, Bounded & Ideal
Ideal Rights: Worthy of considering as general guiding ideals
Much weaker than bounded or exceptionless
‘Rights as suggestions’
Often the level at which customers’ bills of rights
are pitched
‘Traditional’ conceptions of rights operate at
the exceptionless or bounded level
What Does All this Have to
Do with Technology?
Three Elements of a Problem:*
1. Technological Maximality
2. Rights conceived of as bounded or exceptionless
3. An increasing population
(This draws on work by Robert McGinn, Professor
of Management Science and Engineering (Teaching) ,
Stanford University)
Element #1: Technological
Maximality
A quality a technology possesses when it embodies
"in one or more of its aspects or dimensions the greatest scale or highest
degree previously attained or currently possible in that aspect or dimension."
i.e., technology that
makes it possible for us to do things on a scale that wasn't formerly possible
Technologies may be individually maximal (e.g.,
louder stereos) or aggregatively maximal
(e.g., more stereos) or both.
Elements #2: Rights
‘Traditional Rights’
Rights conceived of as exceptionless
or unbounded (i.e., few exceptions)
Part of the problem here is the way in which some
rights have gone from being conceived of negatively to conceived of positively.
E.g., the status of the right to bear children
is ambiguous at present
people are arguing about whether techniques like in vitro
fertilization should be covered by our public medical system.
Element #3: Population
An Increasing Population
the
number of rights holders continues to increase
The Problem
All three elements together are often a destructive
combination, e.g.,
The Provision of Reproductive Technology
Does the right to health care demand that we provide
this?
The Use of Automatic Dialers
Does the right to free speech require that these
must be allowed?
Jetskis on Public Waterways
Does freedom of movment
require that they be allowed?
The Problem
In general, technological maximality
tends to make rights problematic that formerly were not.
In some cases, increasing population worsens the
problem further, i.e., there are more rights holders engaging in this technologically
maximal behaviour
Solutions?
Cut or stabilize the number of rights holders
Problem: Politically unrealistic, besides this would involve
revising reproductive rights and mobility rights
Control technologically maximal behaviour
Problem: Also seems to require revising our view of the
nature of rights.
Why not 'cut out the middle man' and simply re-examine
our view of rights?
McGinn’s Solution
Recognize Rights as a ‘Fiction’
"to get citizens of
a society to take a declared 'right of man' seriously, it has often seemed
prudent to represent rights ... as having some kind of transcendental seal
of approval: e.g., God's blessing..."
A Contextual View of Rights:
Instead, we should take the view that "something
qualifies as an individual human right if and only if its protection is vital
to the fulfillment of one or more underlying basic human needs.”
Notice that this is a very practical, consequentialist justification of rights. If a right
stops serving our needs, it ceases to be a right.
The Canadian Way?
Does the Canadian Charter of Rights and Freedoms
already do what McGinn suggests?
All the rights in the Charter are subject to a
limit laid out in its first section:
Section 1: The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject to reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society.
In Canada, even if a law violates your rights,
the courts can allow it to operate on the grounds provided by section 1.
