Diversity Without Affirmative Action?

This post is in response to the following question posed by the New York Times: “The Supreme Court is expected to rule soon in a case involving the University of Texas on the use of race and ethnicity in college and university admissions nationwide. California, Florida, Michigan and Washington have already outlawed affirmative action in admissions decisions. If a conservative Supreme Court curtails the ability of universities to use race in admissions, could there still be a liberal result with greater emphasis on economic disadvantage in admissions, more financial aid for low-income students, better outreach and reduced emphasis on legacy preferences?” The full debate is available by following this link: http://www.nytimes.com/roomfordebate/2013/05/13/can-diversity-survive-without-affirmative-action

                                                               ****

I have always believed that affirmative action jurisprudence ought to weigh economic disadvantage. That said, doing away with affirmative action for racial disparity has no necessary correlation to fixing the predations of poverty. For all the hope we seem to place in wealth as cure for racism, American law grants no right of economic equality, no right to be protected against hunger or homelessness. If only.

Nevertheless, the figuration of money walks among us like the hologram of perfect citizenship, supposedly eliminating obesity, preventing erectile dysfunction, raising I.Q. and inducing world peace. The latest attestation to its miraculously salutary power is the assertion that African-Americans who would but barricade themselves within a wall of middle-classness will be structurally exempted from racial resentments. According to this logic, when comfortably situated black people move into all-white areas, the neighbors will be delighted; property values will rise; police will not stop and frisk their children on their way to school; the neighborhood watch will not follow them about and demand to know their business.

When a middle-class black person becomes a gymnastics medalist, people won’t say it’s because of that extra African muscle she is rumored to have in her buttocks; instead she’ll be lifted up as a role model of focus, aplomb and very hard work. People will want to wear their hair like hers. If well-dressed black children go to Costa Rica for Spanish language camp, they will be cited for their ambition and cosmopolitanism, not pulled aside by immigration officials on their way back into the country on suspicion of transporting drugs or of speaking a foreign language too well to be a real American.

When a well-off black person plays the piano beautifully, his musicality will be upgraded from innate rhythmic rattling in the bones and instead be hailed as the product of years of study, profound mental acuity and mathematical precision. People will ask if he’s Chinese. And of course a rich black person who gets good grades and becomes editor of the Harvard Law Review and is elected president of the United States will be regarded as the embodied American Dream. No one will ever say that Harvard isn’t what it used to be, or that standards must have been lowered for him to rise so high. No one will accuse him of being too uppity or of having accumulated his wealth by stealing from the baptismal font of good Christian soldiers. People will embrace him, as Jewish perhaps. Or Sikh? How about Muslim?

Yes, it is true that money can mitigate some of the effects of structural bias; it is a blessing to eat, to have shelter. At the same time, it is as silly to argue that prejudice against African-Americans doesn’t exist beyond the wealth gap as it is to say that there is no glass ceiling for women, no backlash against Asians, no resentment of Jews, no harmful confusions about Islam. Our careful commitment to affirmative action — in law, in politics, in life — must be expanded not contracted. The world is too complex for our remediative aspirations to be limited by the crass metric of priced people.

Who Owns What in the Digital Age?

[N.B.: The following piece is part of a discussion commissioned by the Jewish Museum which can be viewed in its entirety at http://blog.thejewishmuseum.org.  As described on that site, the topic was prompted by the following: "Marc Adelman’s Stelen (Columns) (2007–11) was included in The Jewish Museum exhibition Composed: Identity, Politics, Sex (Dec. 23, 2011–June 30, 2012). The work comprises a set of photographs Adelman found on a gay dating website. Following a published review of the exhibition, the Museum received complaints from several people whose profile pictures were featured in Stelen. Their comments focused on privacy issues—the inclusion of their images in the artwork without their consent—and the possibility that as a result of being depicted publicly in the work they might be subject to significant anti-gay backlash."] What are the ethical concerns for artists who appropriate images from the Internet? To what extent should artists consider privacy, the personal safety of their subjects, and First Amendment rights? Marc Adelman’s montage Stelen is filled with “cruel harmonies and stimulating rhythms,” as Edgard Varese described Stravinsky’s 1913 debut of The Rite of Spring. On the surface, the mounting and subsequent removal of Stelen by The Jewish Museum raises questions about expectations of privacy on the Internet, censorship, fair use, appropriation, commodification, and the failure to procure the consent of the men pictured, particularly given that they are citizens of many countries, some of whose laws and customs make the risk of “outing” a deadly one. Still, the law is a dull guide to the deeper, harder questions of aesthetics, the patrolling of sexuality, sacrilege, and art. What is one to see in these silent appeals for love among the monumental ruins? Why gay men? Why an online dating site? Why the Holocaust Memorial? Adelman’s juxtapositions are unsettling, the dislocating beauty of the portraits simultaneously evoking melancholy, heartache, desire, and outrage. The audiences for that first rendition of The Rite of Spring were so unnerved that history remembers them as “rioting.” Adelman’s piece is similarly discomforting—as well as literally threatening to its subjects—in its deploy of voyeurism as radically unconventional address of public memorialization. And that is the heart of the matter that the law cannot settle. First, a museum has broad curatorial discretion in deciding what to exhibit. Unlike the Brooklyn Museum’s encounter with Mayor Giuliani over Chris Ofili’s work, this case does not involve governmental or outside funders censoring what must or must not be shown. And as distressing as it is on many levels, the culling of images from online dating sites without the explicit consent of the people pictured is presently a largely unregulated activity. Nearly all online media sites have terms of service—should anyone actually be able to find them to read them—leaving little question that upon entering cyberspace, you’ve kissed your soul goodbye. Contract terms notwithstanding, however, it’s nearly impossible to conduct oneself in the industrialized world without exposing oneself in unintended ways that challenge what we have historically valued as privacy, as dignity, as respect and self-respect. Life online, in other words, presses all of us—including artists—to assess our underlying commitment to the ethics of intimacy, exposure, and danger. But then art always risks “taking” the intimacy of human form and bending it awry in careless echo chambers of enmity or exoticism, prurience or puppetry. If the exposure in Stelen muddles boundaries in relatively new technological ways, the fundamental questions presented are perhaps quite old. The law of intellectual property has always struggled to balance interests of monopoly and commonweal. That balance is all the more tangled where one group’s perceived appropriation touches on another’s perceived site of reverence. Is a self-portrait on a dating website one’s “own” artistic rendering—so connected to the mind’s singularly productive “copyright” as to deserve protection from alteration or re-touch? Or is a website more like a big communal hopper, a garden into which everyone tosses ideas with the expectation that they will hybridize to produce crowd-sourced cultural riches? Finally, is online discourse a mere disinvested, uninflected species of intercourse with the world—unblessed by muses, dross to be milled into utilitarian profit by enterprising, unanticipated miners-of-the-cyber-universe? We remain far from consensus in sorting how social media are redefining, on a global scale, our moral and aesthetic perceptions. Nor do the neutral principles of law adequately deal either with the panic that has ensued in this instance—for it is hard to imagine such clamor if Adelman’s work had featured a heterosexual dating site—or with the very constraining dangers posed to anyone who assumes there can be secrets in a brave new world of  boundless surveillance. Yet this unnerving, even immoral re-visioning is surely at the line where art always meets politics. Stelen breaks through the fourth wall by rendering its musicians its audience, as well as its audience its musicians. Stravinsky would have recognized this clash: it is as though all concerned had not only stomped out of the theater but demanded the right to take their part of the score home. Revolution doesn’t get much more revolutionary than that.

Lessons From the Central Park FivePatricia J. Williams April

Lessons From the Central Park Five

Patricia J. Williams

April 17, 2013   |    This article appeared in the May 6, 2013 edition of The Nation.

Kharey Wise, the oldest of the Central Park Five, is arraigned in court. Photo by the NY Daily News via Getty Images

On April 16, PBS broadcast The Central Park Five, a film by Ken Burns, Sarah Burns and David McMahon. The documentary, based on Sarah’s book of the same name, reviews the hysteria that accompanied the 1990 trial of five young men accused of raping and beating Trisha Meili as she was jogging. Those young men—Yusef Salaam, Raymond Santana, Antron McCray, Korey Wise and Kevin Richardson—were exonerated in 2002 when convicted murderer Matias Reyes confessed, and his DNA was found to match the evidence from Meili’s rape and a string of other unsolved rapes in or near the park.

I sat in on the trial and have written in these pages about my concern that there was no evidence linking the defendants to the crime (“Reasons for Doubt,” December 12, 2002). The footprints and semen didn’t match; there was no blood or mud on the defendants’ clothing; their supposed confessions were factually wrong; and one police officer testified that the wording in three of the written confessions was his own. A forensic expert testified that the hair samples were “more consistent” with Caucasian than African-American hair, but the prosecution successfully argued that this meant they were not inconsistent. Even after their exoneration, prosecutor Linda Fairstein maintained that the young men had to have been responsible for a number of other park muggings that night, but the timeline does not add up, and none of the victims of those muggings were able to conclusively identify any of the defendants. Finally, no less than Bob Herbert called the victim “the single most effective and sympathetic witness I have ever seen.” Sympathetic she surely was. Except that she didn’t “witness” anything related to the defendants; her injuries were so severe she could remember nothing about the attack.

If ever there was a cautionary tale about why our system presumes innocence, this was it. Yet as Herbert has reflected, in 1990 New Yorkers, including himself, “wanted them to be guilty. And when a desire is strong enough it can overwhelm such flimsy stuff as facts and truth. Reality is a funny thing. It is what we say it is.” Alas, that’s not the definition of reality: it’s the definition of a lie, imposed violently, carelessly, with the full power of the state. So what is the takeaway from the ruined lives of five young men?

First, in direct response to the case, Donald Trump mounted a successful campaign to reinstate the death penalty in New York. But the only thing that could have made this miscarriage of justice worse is if the defendants had been executed with the dispatch Trump howled for. We must rethink myths about the infallible catharsis of the death penalty.

Second, the convictions resulted from a corrupt process. In a clear breach of ethics, the prosecution directed the police investigation from the moment Meili was found, even questioning the defendants before they were charged and in the absence of counsel. The police, too, broke more rules on collecting evidence and questioning suspects than I can list here: but, most unusual, they also testified to much of it—it’s right there in the court record.

Worst of all, the defense attorneys were beyond dismal. Only one was a public defender with real criminal experience. Like many unfamiliar with the criminal justice marketplace, the defendants mistakenly believed that a private attorney is better than a (generally more practiced) public defender. At one point in the film, Yusef Salaam recalls his alarm when he saw Robert Burns, his lawyer, sleeping through crucial testimony. Indeed, Burns fell asleep nearly every day. He slept in full view of the judge and the press. He slept so hard, he once woke up and objected to himself. I fault the judge in this: no responsible officer of the court should have allowed Burns to continue. Competency of counsel is a basic constitutional right. At a moment when law, lawyers and even law schools are under political assault, we ignore their role in a democratic system at our collective peril.

Third, why is it still so hard to make this case the focus of serious public reflection? Given that it was one of the best-covered criminal trials in our history, the 2002 exoneration slipped by with relatively little notice. There is also a great deal of hand-wringing about why “no one” saw the flaws in the case when it was prosecuted. This ignores the fact that the courtroom was visited daily by throngs of people who did see those flaws—and proclaimed them loudly: family, friends, neighbors, residents of Harlem. But they were poor and black and relentlessly mocked in the media as deluded apologists. There were also small cadres of activists who marched in the streets for the defendants, most visibly Al Sharpton. But sadly, a number of them, including Sharpton, squandered that spotlight by blaming the jogger’s boyfriend, for which there was no evidence.

Ultimately, identities of raced gender and gendered race mediated who was heard saying what. Bob Herbert, writing for the Daily News, was hailed not just for his belief that the defendants were guilty, but for his exemplary black manhood, a finger-wagging counterpoint to Sharpton. I got calls from reporters who wanted to know what I “as a black feminist” thought but who hung up when I expressed concern about the strength of the case. To worry that the state had arrested the wrong people was called knee-jerk and Afrocentric; it was heard as an indictment of the victim, as siding with race over gender, rather than as a concern that the real perpetrator might still be loose. Even today, I wonder if this film would be having the same reception had a black filmmaker made it. Would a Charles Burnett or John Singleton have had to negotiate suspicion about motives and sympathies that white directors, positioned in not a few minds as inherently neutral and unbiased, do not? That’s a terrible thought all by itself: if in 2013 we remain as quietly committed to the same counterfactual presumptions of veracity, guilt and “reality” that we did in 1990, then this film documents only a terrible history repeating itself over and over again.

Patricia J. Williams

April 17, 2013   |    This article appeared in the May 6, 2013 edition of The Nation.

Kimani Gray: Guilty Until Proven Innocent

Patricia J. Williams

March 20, 2013   |    This article appeared in the April 8, 2013 edition of The Nation.

Demonstrator Fatimah Shakur speaks during a vigil held for Kimani Gray in East Flatbush, Brooklyn, on Wednesday, March 13, 2013. The 16-year-old was shot to death on a Brooklyn street last Saturday night by plainclothes police officers. (AP Photo/John Minchillo)
The only thing anyone can agree upon is that on Saturday, March 9, 16-year-old Kimani Gray was shot seven times by two New York Police Department officers in East Flatbush, Brooklyn. The police fired eleven shots. Four hit him in the front and side of his body, three in the back.

Gray’s mother says he and his friends were on their way back from a birthday party. Police saw a gang. A neighbor watching from a window says Gray was unarmed, and multiple witnesses say that Gray pleaded for his life. Police say he pulled a loaded gun. Some media reports say the officers were highly decorated for bravery. Other reports note that they had cost the department more than $215,000 in payouts for at least five lawsuits alleging civil rights violations. Police say they found a gun at the scene. A witness says she never saw a gun, and skeptics wonder whether it was a “drop” by corrupt officers.

Sharing the headlines with Kimani Gray was an upcoming trial to decide a class action lawsuit contesting the NYPD’s stop-and-frisk program. One plaintiff has been stopped twenty-eight times. Of those stopped, 90 percent are black or Latino; 90 percent of stop-and-frisks result in no arrest. Many white New Yorkers, including the mayor, praise the program as having lowered the crime rate and clamped down on guns. But criminologists and the New York Civil Liberties Union, supported by FBI data, dispute any causal connection: crime has gone down by the same rates all over the United States, and in cities with no such aggressive policy. And black New Yorkers, particularly those in targeted neighborhoods, cite the living-under-lockdown difficulties of just getting to work or school on time when one is stopped, yelled at, searched—over and over and over again.

Then there were the headlines about the NRA’s Wayne LaPierre giving a “fiery” speech at the annual meeting of the Conservative Political Action Conference in National Harbor, Maryland. His references were laced with light racial code, assuming his overwhelmingly white audience was innately and easily distinguishable from “gangs” and the denizens of Chicago. Invoking the language of “stand your ground” laws, he urged them to “take your own stand. Plant your feet firmly in the foundation of freedom.”

What if LaPierre and his audience had been black? After all, young African-American men are most likely to be the innocent victims of gunfire and, in principle, most likely to have cause to invoke self-defense. Of course, a black man expressing such public zeal for weaponry—and riling up a cheering base, no less—without immediate and repressive consequence is harder to imagine. But as long as we’re trying, imagine a world of equal opportunity where LaPierre’s white audience members were as likely to be stopped and frisked on their way out the door of the convention hall.

The degree to which race and geography have become an overly capacious proxy for narratives of criminality is highlighted by yet another story that unfolded soon after Kimani Gray’s death. Baby Survives Harlem Mother’s Death Leap, read a New York Post headline about a woman who committed suicide by leaping eight floors to her death. It is the word “Harlem” that instantly shapes the assumptions about what happened: she must be black, desperately poor, a bad mother, probably on drugs. On its website, the Daily News headlined the same story “Manhattan mother jumps eight stories to her death with her infant son strapped to her chest; baby survives with minor injuries.” With “Manhattan” as the modifier, this mother was more likely to be seen as selfish, desperately ambitious and not on enough drugs for what was assumed to be postpartum depression. It turned out that she was a white employee of the Manhattan State Supreme Court and a graduate of Columbia Law School. (Of course, there was a stereotyped narrative for that as well: Glenn Beck’s news site, The Blaze, reported the story as Lawyer Mother Leaps From 8-Story Building. Commentary from readers was peppered with surmise about whether the woman was a feminazi with a liberal death wish and with relief that there was one less lawyer in the world.)

A consistent theme in all these disparate news stories is the demise of the presumption of innocence. For those in already criminalized communities, this loss amounts to the abandonment of due process under the law. To presume that everybody is guilty of something is to license responses that assume no need for proof; it undoes our system of justice by validating the notion that we know from the outset what guilt looks like. It enables a literal rush to judgment. It unleashes a killing instinct that shrugs at tragedy as “hindsight.”

The presumption of innocence allows for a moment of collective hesitation before we indulge the voices in our heads—the stereotypes as well as the archetypes that inevitably inflect a culture. It is the collective deep breath that allows us to imagine the humanity in each of us, the possibility of mistake. Crime happens. But despite the horrific rates of segregation, violence, incarceration and inequality at every stratum of our nation, we are not yet in a full-blown war against ourselves. To reorganize the structures and expectations of civil society as though we were, however, assures the same, and locks us into the unbreachability of a dangerously deepening divide.

Back in Brooklyn, demonstrators against New York’s stop-and-frisk policy have merged with those who mourn Kimani Gray. There have been calls—by a familiar cast of noisy people, disgruntled people, black people, poor people, weary people, people smelling of grief and despair—for sixteen days of street protest, a day for each year of Gray’s life. In response, police have erected barriers and nets to contain what they feel will be rioting and looting.

Guns, Democracy, and the Supreme Court

Published on The Nation (http://www.thenation.com)

Patricia J. Williams | January 16, 2013

Credit: Kuppa [1], Shutterstock [2]

As President Obama begins his second term, our hopes and expectations are shadowed by shooting tragedies whose nadir was reached with the deaths of so many children in Newtown, Connecticut. If these events have reinvigorated a conversation about gun regulation and access to mental health treatment, they must also ignite a discussion of political and constitutional values. Without the latter, the former will never come to pass.

Part of the problem is that our governance bodies are divided along such extreme ideological lines that any good theories on guns or healthcare are unlikely to come from them. When Mitt Romney said that 47 percent of Americans “believe the government has a responsibility to care for them…believe that they are entitled to healthcare, to food, to housing, to you name it,” he summed up the congressional divide, as well as the sentiments of conservative Supreme Court justices who would like to do away with most of the entitlement programs of the twentieth century, as well as the Environmental Protection Agency, the departments of Education and Health and Human Services, and Social Security. In National Federation of Independent Business v. Sebelius (the ruling upholding parts of the Affordable Care Act), Scalia, Thomas, Kennedy and Alito dismissed such departments as “devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce.”

We forget at our peril how recent a phenomenon this brand of anti-government rhetoric is: only in the last few decades have freedom and liberty been re-imagined as enshrining such a hyper-individualized notion of economic self-interest. Senator George Hoar put it this way in 1871: “The question is not whether a majority of the people in a majority of the States are likely to be attached to and able to secure their own liberties…. It is whether a majority of the people in every State are sure to be so attached to the principles of civil freedom and civil justice as to be as much desirous of preserving the liberties of others as their own.”

As recently as 2008, Justice Scalia penned the opinion, in District of Columbia v. Heller, that upended two centuries of jurisprudence to hold that the Second Amendment grants an absolute right to individuals—rather than state militias—to keep and bear arms. If, moreover, the Centers for Disease Control or other federal agencies can’t gain access to data about guns and violence because the NRA insists that gun ownership falls within a “privacy” interest, then we avoid hard questions about how access to guns inflects bullying, suicide or domestic abuse, and we are doomed forever to airy discussions about video games. And if Jared Lee Loughner and James Holmes, both of whom suffered from undiagnosed schizophrenia, are treated by our criminal justice system as rational actors rather than as wake-up calls about the urgent need for improving our public health system, then we ensure that  history will repeat itself. As Jeffrey Toobin observed in The New Yorker, “The full meaning of the court’s Heller opinion is still up for grabs. But it is clear that the scope of the Second Amendment will be determined as much by politics as by the law.”

Stanford law professor Pamela Karlan assessed the Roberts Court’s dramatic shift in constitutional values in a recent article titled “Democracy and Disdain.” The “disdain” to which she refers is the justices’ seeming suspicion of what the great John Hart Ely once described as a “participation-oriented, representation-reinforcing approach to judicial review.” Conservatives on the Court, Karlan says, have coalesced around three troubling positions: First, the protection of “spenders” (as in Citizens United) rather than the underrepresented. Second, suspicion of Congress even when it acts by bipartisan majorities and proper democratic processes—as when Justice Roberts worried that the Affordable Care Act might allow Congress to make us eat our veggies, “extending the sphere of its activity and drawing all power into its impetuous vortex,” quoting The Federalist Papers. Third, and as a consequence of that suspicion, the undermining the enforcement of major legislation—as when Roberts, Scalia, Thomas and Alito declared that healthcare coverage has nothing to do with interstate commerce (the Commerce Clause being the legal tether for all public accommodation laws—laws that protect the environment, women’s equality, health, education, disability rights, etc.). If the exorbitant expense and human loss incurred by lack of healthcare doesn’t affect commerce, it’s hard to imagine what would. Indeed, the next Supreme Court case that takes this up directly could, if the balance shifts by a single vote, undo much of the jurisprudential grounding for all civil rights, environmental and health and safety laws. Ultimately, says Karlan, “when a robust version of judicial interpretive supremacy is combined with a narrow construction of key enumerated powers, there is a serious danger that the Court will disable the government from addressing critical national problems.”

So it is, given the fits and fissures of the Roberts Court—to say nothing of our Tea Partying Congress—that there has been an upending of the traditional meaning of justice and of our Bill of Rights. If we are ever to enact effective legislation to control weapons possession, we will have to reckon with Congress’s as well as the Court’s general genuflection to “spenders”—or monied lobbies like the NRA. And if we are ever to deal with the complex question of culture, violence and mental health, we will have to insist that the departments and agencies the Roberts Court seems so intent on gutting be recognized for the role they play in protecting our commonweal, and in grounding public knowledge in independent, empirical and well-researched data.

If we fail to reinvigorate the values of mutually regarding political exchange and jurisprudence, we abandon the antidotes to a lethal distrust that is tearing us apart. Guns are simply the most deadly cipher for a nation that makes war upon itself.

---

Source URL: http://www.thenation.com/article/172260/guns-democracy-and-supreme-court

 

Genetic Endowments…..

 

DeliriousMe: Ownership and Identity in An Age of Genomic Medicine

by Patricia J. Williams

Published in LOG: Journal of Architecture and Urbanism, Volume 25, Summer, 2012

 

Sometimes it’s hard to count on the sustained attention of university students, distracted as they are by an excessively twittering cyber-world. Every now and then we, their professors, have to toss up something extreme to make them snap to.  In my bioethics class, for example, I announce that I’m going to hire a forensic team to come in and do a sweep of the whole classroom with little sterile sensors that will gather samples of hair, hangnails and whatever DNA may be extracted from their discarded coffee cups.  Then I’m going to spin the whole in a big centrifuge, and, with sufficient time and investment, I shall not only manufacture the first Flawlessly Above Average Columbia Law Student, but…. I shall patent the same.  And thenceforth they will not be able to reproduce without paying me royalties.

It’s a far-fetched scenario, yes, but the question of who owns our bodies–in particular the genomic information that may be culled from routine human shedding—is a matter of evolving legal importance.  Gene sequences in genetically modified plants are already owned and traded on a global scale. In the United States, the case of Association for Molecular Pathology v. Myriad Genetics recently challenged the attempt to patent human genetic sequences related to breast and ovarian cancer.  And if the 2012 Supreme Court case of Mayo v. Prometheus has made clear that processes occurring naturally may not be patented, it remains entirely unclear what will be deemed either “natural” or, for that matter, a “process.”

Beyond the technological questions involved in unlocking the secrets of the human genome, there are emotional ties to our detached but component parts, as well as those proprietary stakes. When Alistair Cooke, host of Masterpiece Theater, died in 2004, his cancer-ridden body was stolen and sold for medical-grade bone grafting; most of us will feel that the crime involved is not just about the property of the body, but is also a violation of the body’s…sanctity for lack of a better term.  When, in 2011, a teenager in China sold one of his kidneys so he could purchase a new iPad, it attracted international media attention for its extraordinary mining of the body for purely pecuniary purposes.

One of the weirder cases exploring this bioethical territory involved South Carolinian John Wood, whose leg was amputated after an airplane crash in 2004. Wanting to be buried “whole” eventually, he had the leg embalmed and placed it in a storage unit with other belongings. But he fell behind on the rental fees, and the contents of the unit were sold to one Shannon Whisnant, who found the leg carefully wrapped and nestled inside a BBQ smoker. Whisnant called the police, who traced it back to Wood. Wood insisted the leg be returned given his sincere belief that, detached or not, it was part of him. Whisnant, however, claimed that he was the purchaser-for-value, and that he hoped to put the leg on display and charge a hefty price for the viewing. “Halloween’s just around the corner,” he explained.

The ghoulishness of this scenario should not obscure the legal issues at stake: should a commodity interest in the contents of the storage unit trump the sacrosanctity of corporeal integrity? Are discarded body parts “alienable” in a free-market sense? Or do they fall in the realm of what we deem constitutionally “inalienable”?

What about DNA? Suppose we assumed that Wood’s genetic makeup included cells that were resistant to some rare disease. Do Wood or Whisnant have any proprietary claim to profits to be derived from the extraction, culture and sale of those cells? Could Whisnant not only display the leg but also publish Woods’ entire genome as part of his Halloween art show? Could the police officer to whom Whisnant brought the leg do a DNA test, retain the sample, patent a method of assaying the extracted data, and ultimately market a pharmaceutical byproduct to patients at $5000 a dose? We all leave trails of our cells wherever we go—under what circumstances should that material be regarded as discarded and thus open for exploitation by finders-as-keepers?

On May 30, 2012, the personal genetics company 23andMe announced that it had procured its first patent, for “Polymorphisms Associated With Parkinson’s Disease.” Patents create exclusionary rights in knowledge; they prohibit non-patent-holders from using that knowledge without permission or the payment of royalties. 23andMe’s patent stems from massive aggregations of data culled from customers who’ve paid considerable money for information about their genetic predispositions for various health risks. While 23andMe’s consumer contract says that no “research” on submitted spit samples shall be done without consent, many customers seem not to have realized that it goes on to define “research” as “academic”—which is to say work published in “peer-reviewed scientific journals.” The contract then distinguishes “research” from “research and development (R&D)” of commercial products—for which no consent is needed.

When announcing news of the patent, CEO Anne Wojcicki declared that she wants “discoveries to move from the realm of academic publishing to the world of impacting lives by preventing, treating or curing disease.” But it is precisely in academic publishing where new ideas are most apt to be freely shared and tested; Wojcicki seemingly wants to dislocate discoveries “from” academia “to” the gated community of patent law–simultaneously designating patent law as the exclusive geography of disease prevention, treatment and cure. As she explains, “Often the only way a company will even think about pursuing a drug lead is if they have assurance that they can recoup their investment.”

Wojcicki frequently expresses her desire to heal, and to broadly share the knowledge gained through data mining. Readers may know that Wojcicki is married to Google co-founder Sergey Brin, whose family history of Parkinson’s disease places him at risk. But that back story, compelling as it may be, is not reflected in the business model either of them pursue—nor should anyone expect it to be. As with any for-profit corporate head, their fiduciary duty is to make money. The realization of any wider or public interest in health care will not come from the private corporate sphere by itself.  The patent system, as well as our corporatized system of R&D, assure that data-aggregating businesses’ real wealth will come not from analyzing individual spit samples, but from the far greater asset of bundling customers’ genetic, lifestyle, and family history for commercial exploitation.

The reality of that exploitation must be bourne in mind by those who so easily send off DNA samples to be analyzed for either medical risk or ancestry tracking.  Over the last few years, “spit parties” have become quite popular as a kind of party game, and as a purported teaching aid in high school and college science classes, touted as both fun and educational.  But we should be much more thoughtful about the ends for which our bodies are being mined. The redemptive thrill of being co-creators of some medical miracle must be measured against the possibility that we are rendering fungible that which most profoundly distinguishes us and….enabling a commodity exchange in which important aspects of our identities will be sold to the highest bidder.

Recently I attended a science-and-democracy themed conference entitled “Deleterious Me: Whole Genome Sequencing, 23andMe, and the Crowd-Sourced Health Care Revolution” at which Anne Wojcicki was the featured speaker.  The poster for the conference, which depicted the double helix as a spiral staircase with little Lego-like people climbing upwards, ever upwards, toward a darkly gloaming heaven served as a very effective metaphor for the concerns I have about this entire industry. I worry that “DNA” is too often figured in the popular imagination as an inevitably uplifting stairway to heaven, an infallible path to higher truth. This leads to a credulous suspension of both ethics and caution.

In addition, the peculiar locution of Wojcicki’s title, “Deleterious Me,” posits the intimacy of “me” as inherently self-destructive.  It’s an odd but effective recasting of mortality as auto-immunity. One’s essence is framed as noxious, diseased, decaying.  Health and health care, by contrast, are positioned on the other side of the colon, located squarely in the geography of crowd-as-source.  If the individual is framed as dangerous, lonely, self-annihilating, its rescue lies in the comfort of crowds, safety in numbers, collective shelter from the HarmfulMe.

There is power in this conjoined set of idealized genetic references:  a poignant longing for embodied self-perfection, yet the fear and loathing of assured self-betrayal.  There’s something very nearly Shakespearean about the tension: tremulously human, mythically themed, with just a hint of hovering tragedy.  Indeed, the urgencies of our technological revolution beg for philosophizing or negotiation on some theatrical public stage—some Faustian oratorio where narrative and necromancy meet for a solemn duet.

In the 21st century, however, our greatest passion plays are exploited in the realm of private contract rather than public good or participatory democracy, rising to general consciousness only at the level of commercials aired at half-time.  So it is that privately-held companies like 23andMe can own, store and resell—to anyone–the most elemental biological markers of individual identity while marketing themselves as “direct-to-consumer” purveyors of “personal” self-knowledge.

This is more insidious than it might sound initially.   Using 23andMe as an example (and as the largest such company in the United States), it’s instructive to look at what the enterprise promises in its advertisements, versus what it actually provides.   On its website (as of May 21, 2012), the company invites you to order a DNA Spit Kit, the analysis of which will “start your journey” into a world of “endless possibilities.” The results will “help you explore” the past (“Discover your global origins, trace your ancestry, and find living relatives”); learn about your present (“Access over 200 online health and traits reports, including carrier status, drug response and disease risk”); and participate in the future (“Be part of the new genetic discoveries that can benefit us all”).

But the Terms of Service—that is, the contractual provisions to which customers actually agree—are so vague that it is unclear whether the company is really agreeing to provide any more grounded information than what one might find in a horoscope or a really slimy Ouija board.  What is clear, however, is that the company is not really making the bulk of its profit from analyzing spit samples, but rather from the sale and exploitation of data gathered from the collective spittoon.  Worse, there are serious breaches of privacy and broad potentialities for surveillance.

This is hardly a new ethical challenge. When Rebecca Skloot’s book, “The Immortal Life of Henrietta Lacks,” hit the best-seller list some years ago, there was a brief flash of heightened public awareness of the phenomenon of “bioprospecting.” Ms. Lacks was a poor black woman who suffered from a uniquely aggressive form of cervical cancer, to which she succumbed in 1951. Her cancer was rare enough that she became an object of medical study; some of her cervical cells were taken, cultured in a petri dish, and distributed widely for research purposes. It was the first so-called “immortal” human cell line and it has been the foundation for literally billions of dollars’ worth of medical and pharmaceutical discovery. Neither Lacks nor her family was informed of the removal of those cells, or the profit derived therefrom. When Skloot located Lacks’ children and grandchildren, she found a family still poor and without health care. Skloot’s exemplary response was to set up the Henrietta Lacks Foundation, a non-profit that provides emergency health care and medical scholarships to those in need. (Donations may be made by visiting www.henriettalacksfoundation.org.)  Ms. Lacks’ legacy points to the crux of the problem:  if a person’s biological material can be bought and sold and patented should not the profits therefrom be shared—at least to some degree–with the person in question, or perhaps pooled as a kind insurance for common health and welfare?

What of the privacy issues implicated in the buying and selling of intimate genetic data? 23andMe promises to “anonymize” genetic data, and to destroy saliva samples upon request.  It helps to know, however, that destroying the actual samples does not mean that the computerized map of information extracted from that sample will be destroyed.  Even where a customer attempts to eliminate an account altogether, “[o]ur contracted genotyping laboratory may…retain your Genetic Information as required by local law and we may retain backup copies for a limited period of time pursuant to our data protection policies.”  What constitutes a “limited period of time” is not defined.

In addition, where 23andMe enters into commercial arrangements, it discloses enough information to “enable partners to provide our Service to their customers and/or to provide you access to their products and services. We will not provide any individual-level Personal Information to these commercial partners without your explicit consent. 23andMe may include your Genetic and/or Self-Reported Information in Aggregated Genetic and Self-Reported Information disclosed to these commercial partners even if you have not given consent for your data to be used in 23andWe Research.”

Notice that there is a distinction made between “individual-level Personal Information” (defined as name, email, address, user ID and password, payment information, etc.) and aggregated “Genetic and/or Self-Reported Information.”  Genetic information means your genotype: the specific chemical map or sequence of your DNA.  Self-Reported information includes everything about yourself, “including your disease conditions, other health-related information, personal traits, ethnicity, family history, and other information that you enter into surveys, forms, or features while signed in to your 23andMe account.” Finally, “Aggregated” means information “combined with data from a number of other users sufficient to minimize the possibility of exposing individual-level information while still providing scientific evidence.”

But what happens if that “individual-level information” is exposed despite the company’s metrics for minimizing that possibility?  To say nothing of what happens if and when the ability to read this data improves to the point that we no longer need cumbersome details like names and social security numbers, but instead can, with ever-increasing accuracy, determine identity by “familial tracking” or by mapping genetic data onto medical records onto Googled purchasing histories onto GPS trails onto school records onto criminal data bases….

It is also interesting to contemplate what will happen to one’s data in case of bankruptcy: “In the event that 23andMe goes through a business transition such as a merger, acquisition by another company, or sale of all or a portion of its assets, your Personal Information will likely be among the assets transferred. In such a case, your information would remain subject to the promises made in any pre-existing Privacy Statement.”

If “any pre-existing Privacy Statement” leaves you scratching your head, you need to know that all of the Terms of Service, including the Privacy Statement, are in a kind of constant motion, subject to revision, amendment or replacement, “effective upon posting at www.23andMe.com.“  In other words, purchasers are bound by whatever terms are in the latest version of the contract that 23andMe dreams up.  Don’t like that?  Then you can choose to “terminate the Agreement at any time,”—even as 23andMe can just choose to hang onto your data for that “limited” but indeterminate period of time.

Under traditional concepts of contract law, such a radical subversion of any expectation interest whatsoever is arguably grounds for striking down an agreement as “illusory” (meaning that it styles itself as promising something palpable, but in fact contains so many loopholes that it holds the company to nothing at all) as well as contrary to public policy.  But in an ultra-libertarian moment haunted by rulings in such cases as Citizens United, it seems that judges and CEO’s alike are having trouble divining any difference between the narrow “choices” of a “customer” and the broad human interests of a citizen.

And so the question looms: is the language of “consumer choice” sufficient to address the ethical quandaries posed by the massive accumulation of population-wide genetic stores taxonomized as privately-owned, wealth-producing assets?  Does it pose, in crude terms, the same clash of values to be found in the apocryphal sale of Manhattan for baubles and beads—to wit, that indigenous Americans were operating under a so-called gift economy where the use of objects or land was understood as something to be passed back and forth over time (hence the term “Indian giver); whereas the English settlers were operating under a system that entitled them to erect fences, marking their claims as exclusively proprietary, in perpetuity.

Similarly, one must wonder if the easy expropriation of our DNA, particularly when couched as mere parlor “game” or spit “party,” is in any way reconciled with the vast value of what is being ceded:  the unplumbed pecuniary wealth as well the as-yet unexplored potential for surveillance and discrimination. An individual might well be led to think that his small contribution of spit is a worthless externality to his purchase of a self-revelatory service that is  “entertaining” and “fun” (as Anne Wojcicki has referred to it on more than one occasion) but…less visibly, 23andMe acquires a pot of gold.

Such a transaction also relegates that spat-out bit of golden code to the private sphere, transforms its—or your?–secrets into someone else’s property.  Clothed as contract, it is very hard to reclaim a host of genomic interests that we might otherwise think of as beyond the proprietary–like medical ethics or class access or scientific research protocols or new identity formations or protection against fraud.

If the real asset of data ownership is hidden by such contract terms, so too the “service” of “connecting” to one’s ancestors or predisposition to certain diseases is ephemeral at best. Despite the romantic lure of deliverance from the “deleterious me,” the fact remains that genetic science is still in its infancy and quite imprecise for the most part. For most medical prognostication, the probabilities assessed by any direct-to-consumer company are little more than guesstimates.  Indeed, 23andMe’s disclaimer of warranty and limitation of liability is eloquent testament to that:

“YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT: (1) YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. 23ANDME EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (2) 23ANDME MAKES NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS AND (e) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. (3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM 23ANDME OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. (5) YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. 23ANDME DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES AND, THEREFORE, 23ANDME SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES.

…WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT 23ANDME SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF 23ANDME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE SERVICES, (v) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (d) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; or (g) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES.

Ultimately, the revolution in genomic technology tests the delicate conceptual and jurisprudential relation between the historic sanctity or inalienability of human bodies and the body as product.  The discourses of biology and genomics, research and industry all tend to de-center the individual body in deference to idealized, hypothesized, demographic and/or normative interests.  It is an epistemic problem: and more often than not, the terms of debate are being framed in a way that discourages public engagement or debate and instead trends toward narrowing for the sake of efficiency of economic outcome.

I hope that 23andMe–and the host of data-mining companies like it—might consider how to channel the wealth yielded from patented discoveries into not-for-profit or low-cost treatment options for all—and certainly for their “direct consumers” at the very least. But if what we strive for is an informed and evidence-based advocacy rooted in social justice, it is not likely to come from competitive ownership of information in a market based on commercial profit alone.  If we wish to concede that there is knowledge-value in aggregating data from as broad a base as possible, that knowledge must be tempered by accountability to the basic constraints of civil society, such as protection against discrimination and invasion of privacy.  By the same token, hoarding and patenting genomic information so as to exclude others from using it does not enhance scientific discovery as much as the unhindered non-proprietary dispensing of solid data through the (increasingly belittled-as-inconvenient) process of peer-reviewed publication, of shared reconsideration, and of corrected republication if necessary.

Any notion of participatory democracy in this emerging arena must be premised on a diversity of voices—and that diversity will require broad access to the debate not merely to the technology.  We seem much too intently focused upon the benefits of aggregating fetishized bits of data from vast pools.  It is time we actually engaged the living, speaking subjects who make up the crowd, the sources, and the collectivity of our wisdom.

Charlie Rose: A discussion about prison reform

with Eugene Jarecki, Patricia J. Williams and Michelle Alexander, in Current Affairs on Wednesday, November 28, 2012

To view, please follow this link: http://www.charlierose.com/view/interview/12677