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It’s unlikely that Brandeis could have imagined the world of 2010, but being a civil libertarian requires a touch of paranoia—anticipating threats to freedom rather than waiting for them to metastasize. “It’s striking how rapidly things move from being science fiction to being true threats to privacy, from face recognition to body scanners,” Stanley says.
The abstract issues raised in Stanley’s report frequently derive from recent American science fiction: The cult hit Blade Runner, set in a dystopian future in which the Tyrell Corporation manufactures androids that are nearly indistinguishable from humans but are considered property with no rights at all. The Terminator series, featuring a defense contractor that builds artificial intelligence that plunges the world into an apocalyptic war between humans and cyborgs. The Company, the villainous firm in the Alien movies that constantly exposes its workers to danger in order to learn more about the capabilities of the eponymous aliens.
The document convinced the ACLU leadership that these cinematic plots were rooted in science as much as in fiction, and that the organization was frightfully ignorant of potential threats to individual liberty from emerging technologies. “We decided that we needed to have somebody who could help us think through these issues and monitor them and provide us with ties to the scientific community and scientific expertise,” Stanley says. In 2003 the organization hired a science adviser, Tania Simoncelli, to monitor scientific advancements for potential threats and act as a liaison to the scientific community.
“I was rattling off topics that I thought had a litigation angle,” Simoncelli recalls, “and I said of course there’s always the issue of gene patents.”
Chris Hansen, an ACLU staff attorney, balked. “What?” he said. “You’re telling me . . . the U.S. patent office is granting patents on human genes?”
“Chris,” Simoncelli said, “it’s been going on for about 20 years.”
For more than a decade Myriad Genetics held the patent for two genes linked to the mutations that cause breast cancer or ovarian cancer. Hansen and Simoncelli began working on ways to challenge the patent in court. In 2009 the ACLU brought the biggest science-based lawsuit in its history against Myriad.
It’s not permissible to patent laws of nature or products of nature or abstract ideas. According to the 1980 Diamond v. Chakrabarty Supreme Court decision, however, biological organisms can be patented as long as they have been altered enough that they do not occur naturally. So Myriad’s position was simple: By isolating a gene, the company claimed to have created a manipulation that doesn’t occur naturally. The ACLU argued that while the genes are artificially isolated, they are still indistinguishable from naturally occurring genes.