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By Michael Holloway, John McElligott

Beginning in mid-July, Chicagoans may notice decorative metal boxes appearing on downtown light poles.  They may not know that the boxes will contain sophisticated data sensors that will continuously collect a stream of data on “air quality, light intensity, sound volume, heat, precipitation, and wind.”  The sensors will also collect data on nearby foot traffic by counting signals from passing cell phones.  According to the Chicago Tribune, project leader Charlie Catlett says the project will “give scientists the tools to make Chicago a safer, more efficient and cleaner place to live.” Catlett’s group is seeking funding to install hundreds of the sensors throughout the city.  But the sensors raise issues concerning potential invasions of privacy, as well as the creation of data sets with hidden biases that may then be used to guide policy to the disadvantage of poor and elderly people and members of minority groups.

Privacy

Project leaders and City officials deny that the sensors raise privacy concerns.  According to Catlett, a computer scientist, the sensors will “count contact with the signal rather than record the digital address of each device, and “information collected by the sensors will not be connected to a specific device or IP address.”  Brenna Berman, the city’s commissioner of information and technology, said that “privacy concerns are unfounded because no identifying data will be collected.”  However, Alderman Robert Fioretti has called for a public hearing on the data sensors.  Fioretti notes that City Council was never consulted about the plan, an Emanuel administration initiative, and states that the sensors raise “obvious invasion-of-privacy concerns.”

Raising a note of skepticism about the City’s privacy assurances, Professor Fred Cate of Indiana University’s Maurer School of Law noted the difficulty of avoiding the collection of personally identifiable information, even when protections intended to prevent the collection of personal information are in place: “Almost any data that starts with an individual is going to be identifiable.”  Cate’s statement accords with scientific research showing that, in practice, supposedly anonymous or anonymized data can in many cases be reidentified with an individual.  Cate also raised the question of oversight: “If you spend a million dollars wiring these boxes, and a company comes in and says ‘We’ll pay you a million dollars to collect personally identifiable information,’ what’s the oversight over those companies?”

In light of the potential privacy concerns, Dean Harold Krent of IIT Chicago-Kent College of Law noted that transparency is key in Chicago’s operation of the sensors. The City must be clear about how many sensors there are and how they are used, and must ensure that the data captured by the sensors is easily accessible to public officials.

Hidden Bias

Jeremy Gillula, a staff technologist at the Electronic Frontier Foundation (EFF), pointed out that the proposed system may create unintentionally biased data sets.  The proposed sensors will track contacts with signals from Wi-Fi and Bluetooth-enabled devices, but this will only reflect a subset of the overall foot traffic, since not all passers-by will be carrying devices with Wi-Fi or Bluetooth capabilities.  In Boston, the use of a mobile app called Street Bump to track potholes in the city produced biased data because smartphone owners tended to live in wealthier areas.  Similarly, many Tweets during Hurricane Sandy originated in the largely affluent borough of Manhattan, giving the impression that it was among the hardest-hit areas of the storm, while in fact lower-income, outlying areas such as Breezy Point, Coney Island and Rockaway were harder hit.

These examples reflect the fact that large datasets, while seemingly objective and abstract, are “intricately linked to physical place and human culture.”  As the EFF has noted, “many groups are under-represented in today’s digital world (especially the elderly, minorities, and the poor). These groups run the risk of being disadvantaged if community resources are allocated based on big data, since there may not be any data about them in the first place.”  Chicago will need to carefully validate the data collected from the proposed sensors to avoid introducing similar biases into policy and planning decisions.

Michael Holloway is a Legal Fellow at IIT Chicago-Kent’s Institute for Science, Law and Technology.

John McElligott is a Research Assistant at the IIT Chicago-Kent Institute for Science, Law and Technology. He is currently studying Law in his second year at the IIT Chicago-Kent College of Law.

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By Nadia Daneshvar

Salary. Health insurance. Long-term disability insurance. Flex benefits. 401(k)…and “baby insurance”? With the advent of egg freezing, women can have children practically whenever they want and with whomever they want, by simply having their viable eggs frozen while they’re still young. Imagine if your employer decided to cover the cost of preserving some of your eggs for you as a part of its benefits package. Some law firms are doing just that for their female employees. Testing, monitoring, and retrieval of eggs can cost anywhere from $6,500 to $12,850, and annual storage fees of retrieved eggs are typically between $400 and $600. But the costs don’t stop there. When a woman decides she is ready to user her eggs, they must be thawed, fertilized, and transferred to a woman’s uterus, which costs anywhere from $4,500 to $7,000. At Specialists in Reproductive Medicine and Surgery, a woman could pay a total of $21,558 if the eggs are stored for only one year. These procedures are rarely covered by health insurance and vary from clinic to clinic, making employer-covered egg freezing a financially enticing option for many women. After all, one-fifth of American women between ages 40 and 44 do not have children, among whom half regret their status wishing they had children. Egg freezing is thought to offer the option to younger women to avoid such future regrets.

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By Lori Andrews, JD

Julian Assange, Feb 27th The Media Consortium conference, Chicago, IL

Julian Assange Skyped into the TMC conference to discuss “The Use and Abuse of Whistleblowers” with Juan Gonzales, Democracy Now!; Gavin MacFadyen, Centre for Investigative Journalism; and Bea Edwards, Government Accountability Project.

They use burner phones as they cross borders.  They buy old Lenovo computers because there are fewer backdoors into those computers that allow surveillance.

They are not spies or criminals.  They are investigative reporters trying to get on-the-ground stories to help us understand and sometimes change our world.

Last week, The Media Consortium and IIT Chicago-Kent College of Law joined forces to describe the challenges that reporters face in an era when intelligence agencies such as the National Security Agency and corporations such as Google spy on what each of us is doing on our digital devices.  At the joint workshop, Josh Stearns of Free Press and the Freedom of the Press Foundation reported on how many journalists had been killed and jailed in last year.  And it’s not just a problem abroad.  According to the World Press Freedom Index, the United States has slipped to number 46 in a ranking of countries on how much freedom it gives its reporters, well below even countries such as Ghana and Uruguay.  amalia deloney of the Center for Media Justice described how surveillance in general disproportionately affects people of color.  She showed a slide of a police tower that one might have guessed was situated in Guatemala or another oppressive nation.  Instead, it was in a primarily African-American neighborhood in Charlotte, North Carolina.

What information is the NSA collecting about activists, reporters and you?  The NSA gathers the phone numbers, locations, and length of virtually all phone calls in the United States.  It collects records of nearly everything you do online, including your browsing history and the contents of your emails and instant messages.  It can create detailed graphs of your network of personal connections.  It can create phony wireless connections in order to access your computer directly.  It can intercept the delivery of an electronic device and add an “implant” allowing the agency to access it remotely. Continue Reading »

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By Ryann Summers

Recently, a former co-worker and his romantic partner sent me a text message that left me reeling.

It essentially read: Hey, can I have ur eggs? Thx.

Few couples would be better equipped to raise a well-loved child than these two men, and I fully supported their decision to start a family.  But I wondered how we had arrived at the point where this request has become so casual that it can be communicated in fewer than 140 characters.  At least take me out to dinner.

I don’t fault my co-worker; his question mirrors how the issue is presented in our culture.  As a woman in her early 20s, I am bombarded by advertisements seeking my eggs.

Recently when I was riding the T in Boston, I found myself staring at the face of a smiling baby, and a dollar amount.  It seems, well, easy.

Egg donation payments range anywhere from $5,000 to $10,000; some solicitations offer amounts as high as $20,000, or even $100,000, for donors with specific characteristics.  I could definitely benefit from thousands of dollars, and hey, I probably have eggs to spare, right?

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By Lori Andrews

Susan, a professional woman in her 30s, met a man she thought she’d ultimately marry.  Their relationship was sufficiently intimate that she sent him a naked photo of herself.  When she caught him cheating, she broke up with him.  He took revenge by posting that selfie on a revenge porn website, along with her name, the name of her town, and her social media contact information.  She received messages from complete strangers asking for more naked photos.  As she went about her daily life, she was afraid that one of those men would stalk her.  She worried that her co-workers might have come across the photo.  She knew that if she applied for a new job, that nude photo would come up in a Google search of her name.  She’d been branded with a modern Scarlet Letter.

Across the Web, thousands of people attack their exes by posting disgusting comments about them, warnings not to date them, or nude photos of them.  On October 1, California Governor Jerry Brown signed into law a bill criminalizing what has become known as revenge porn.  The law assesses a thousand dollar fine in a narrow situation.  It is a misdemeanor for a person to photograph “the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.” Continue Reading »

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By Dan Massoglia

It’s a crisp afternoon on the Northwest Side of Chicago.  A white Opel Astra cruises down the block, its roof-mounted camera capturing photos dedicated to Google’s now ubiquitous Street View service.  Far more than taking pictures of streets and sidewalks, however, Google’s cars have been collecting digital information from inside homes as well, covertly sucking down data sent via unsecured wireless routers, picking up emails, passwords, and even documents and videos from the families inside.

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By Lori Andrews

Today the U.S. Supreme Court held in Association for Molecular Pathology v. Myriad Genetics, Inc., that human genes were not patentable since they are products of nature and not inventions.  This decision is great news for patients, doctors, and scientific researchers.  Some biotechnology companies might grumble about the decision, but the decision will actually stimulate innovation by pharmaceutical companies and the new generation of biotech companies.

The case involved Myriad’s patents on the human breast cancer genes known as BRCA1 and BRCA2.  Those patents made your genes Myriad’s property once they were removed from your body.  Consequently, the company could control all uses of the genes, including any diagnostic testing or research.  The U.S. Supreme Court saw the absurdity of letting a company own your breast cancer genes.  Continue Reading »

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By Lori Andrews and Jake Meyer

The United States Foreign Intelligence Surveillance Court in Washington, D.C. in a top secret court order ordered Verizon to produce to the National Security Agency (NSA) “all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

Since we’re Verizon users, this order means that the NSA knows who we called, where we called them from, and for how long.  The NSA even knows that we’ve talked to each other. Continue Reading »

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By Lori Andrews

On April 15, the U.S. Supreme Court will hear the case Association of Molecular Pathology v. Myriad.  The question before the court is:  Are human genes patentable?

For 150 years, the Supreme Court has said that abstract ideas, laws of nature and products of nature are not patentable.  Such patents would run afoul of the progress clause of the Constitution and section 101 of the Patent Act.

In 1980, the Supreme Court in Diamond v. Chakrabarty held that genetically modified living organisms are patentable if they are markedly different than what occurs in nature.  That case reiterated that laws of nature like E = mc2 are not patentable, nor are products of nature such as plants from the wild or minerals from the ground.

Three decades after the Chakrabarty decision, the Supreme Court revisited the exception by taking a trilogy of cases.  In the first one, Bilski v. Kappos, the Court held that an abstract idea–hedging in trading energy futures–could not be patented.  In Mayo v. Prometheus, the Court held 9-0 that a law of nature–how the body responded to the administration of a drug–was not patentable.

In the Myriad case, the Court will be addressing the third part of the exception, dealing with products of nature.  It will address whether an “isolated” breast cancer gene is an unpatentable product of nature.  The patents at issue cover two isolated genes related to breast cancer, BRCA1 and BRCA2.  The patents define the isolated gene to include a gene sequence “removed from its naturally occurring environment.”  This claim gives Myriad the ability to control all uses of anyone’s breast cancer genes once they are removed from the body, giving Myriad the right to exert a monopoly over all BRCA1 and BRCA2 breast cancer gene testing and research.

What is a gene sequence?  It’s a series of chemical letters known as nucleic acid bases–designated by A, T, C, and G.  It is important because a single change in the letter–a typo in the sequence–can lead to a genetic disease.  To diagnose a genetic disease, a physician or laboratory compares the patient’s genetic sequence to a normal gene sequence to see if there are differences that predispose the patient to breast cancer.

The question the Supreme Court will ask, under the Chakrabarty case, is whether what Myriad patented is “markedly different” from the breast cancer genes in the body.  Myriad asserts that the isolated gene is a product of human ingenuity.  Myriad argues that it “successfully isolated the ‘BRCA’ molecules and disclosed their creation to the world. This momentous advancement required significant skill, insight, and invention on the part of Myriad’s inventors.”

Myriad also argues that isolation of the gene “depended on an enormous amount of human judgment, including how to define the beginning and end of what came to be called the BRCA1 and BRCA2 genes, and then creating isolated DNA molecules corresponding to those particular defined genes.”  Myriad also argues that by isolating the gene, it gave the gene new uses since genes in the body cannot be used for diagnosis.  It also created copies of the gene in the lab.

In contrast, the petitioners in the case argue that what Myriad patented is not markedly different from nature.  For Myriad’s gene sequence to work as a diagnostic tool, it must have the identical sequence to that of a breast cancer gene in nature.  The petitioners argue that once the unpatentable product of nature, the gene sequence, was discovered, Myriad used routine means to create copies of it and to undertake diagnostic comparisons to patients’ genes.  The Court is likely to look to a 1948 Supreme Court case, Funk Brothers Seed Co. v. Kalo Inoculant Co., in which the patent applicant combined six types of bacteria and the claimed invention was found to be an unpatentable product of nature because the bacteria “served the ends nature originally provided.”  The petitioners argue that here the isolated gene sequence merely serves the ends nature intended.

In addition to extensive briefing about whether there is sufficient human ingenuity involved to consider an isolated human gene to be a patentable invention, the affidavits and amicus briefs in the case gathered all existing data on whether gene patents encourage or discourage innovation.  Over 90 affidavits were filed, including those from Nobel Laureates.  Briefs from over 102 amicus groups were filed, including briefs from medical organizations such as the American Medical Association and patient advocacy groups such as the March of Dimes arguing for the invalidation of gene patents, and briefs from industry organizations such as the Biotechnology Industry Organization and intellectual property associations such as the American Intellectual Property Law Association arguing that gene patents are valid.  Also weighing in were prominent scientists, various companies and numerous law professors.

I filed an amicus brief in the case on behalf of medical organizations, including the American Medical Association, American College of Obstetricians and Gynecologists, and American Society of Human Genetics, providing evidence that patents on genetic sequences interfere with health care and research.

Medical organizations are concerned because gene patents increase the cost of the diagnosis and treatment of genetic diseases.  For 20 years, a gene patent holder controls any use of “its” gene. The patent holder can charge whatever it wants for any test analyzing the patented gene–even if that test uses a technology that was not invented by the patent holder.  Myriad, which holds the patent on the BRCA1 and BRCA2 genes, charges over $3,000 for its genetic test for breast cancer.  One in four laboratories has stopped performing certain genetic tests because of patent restrictions or excessive royalty costs.

The ability of a patent holder to prevent health care providers from using a patented genetic sequence denies people crucial medical information.  Most drugs only work on a percentage of patients who use them.  An asthma inhaler might only work on seven of ten people to whom it is prescribed, causing the other three to suffer symptoms of asthma and pay for an inappropriate drug until the right medication can be found.  Genetic testing can help to distinguish those people for whom a drug will work from those people for whom it will not work, but, if the same entity holds the patents on the drugs and the gene sequences, it may prevent use of the gene sequence because the identification of people for whom the drug will not work will limit the market for the drug.

One company has filed for patent protection on a genetic sequence that could be tested to determine the effectiveness of its asthma drug in a prospective patient.  The company, however, has said that it will not develop the test–or let anyone else develop the test.  While such a test would be crucial to doctors in determining which patients would benefit from the use of the asthma inhaler and which patients would benefit from a different drug or treatment, it would also diminish the market for the drug because a trial use of the asthma inhaler would no longer be needed to know if it would be an effective treatment.

For more information, listen to my interview with Minnesota Public Radio on the subject or view the video of an interview with me on the OYEZ website.

Lori Andrews by Lori Andrews

Facebook and other social networks are transforming huge swaths of our lives–how we work, shop, and stay in touch with the people we love. They are also changing the political process itself. When John F. Kennedy and Richard Nixon debated on television, concerns were raised that politics would deteriorate into a contest where the most telegenic candidate won. But TV debates took place out in the open–anyone could tune in. And the Federal Communications Commission adopted regulations so that opposing candidates were granted equal time to present their views.

With social networks, it’s not the most telegenic candidate who wins, but the one with the best data crunchers. Barack Obama was swept into office largely because of his presence on the Web. His social network campaign was managed by one of the founders of Facebook, twenty-four-year-old Chris Hughes, who took a leave from the company to propel Obama into office.

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