Emily Jackson: A legal perspective

We sat down with Emily Jackson to discuss security and technology from a legal and ethical point.

Professor Emily Jackson first joined the LSE Department of Law in 1998. Emily’s research interests are in the field of medical law. In addition to publishing in this area, she is a member of a number of regulatory and advisory bodies, such as the Human Fertilisation and Embryology Authority, and the British Medical Association Medical Ethics Committee. Bios Blog has had a chat with Emily…

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 BB: What are the legal issues with this technology, or other emerging technologies like this?

 EJ: I foresee problems relating to consent with this technology. Consent, as the right to say yes or no to things done to one’s body, is the cornerstone of medical ethics. Without consent, touching someone amounts to a violation of the right to determine what is done to your body. But these new noninvasive technologies can evade consent issues by claiming they don’t actually do anything to your body. In reality, we need to rethink the legal framework that assumes we only do things to people by touching them, by invading their bodily integrity. Clearly, noninvasive technologies have effects as well, and potentially harmful ones at that. For example, it is possible that new embryo testing technologies can test for molecular changes in the culture medium instead of invasively testing the embryo. It is interesting to think about whether the fact that it is non-invasive makes a difference to the rules under which embryo testing is legitimate..

 BB: How do you…

 EJ: Oh, and data security will certainly be an issue. Despite encryption, human error is always a potential problem; people leave laptops on trains, people make mistakes. So, storing data in the form of brain images could lead to other unforeseen legal issues.

 BB: How do you regulate non-invasive technologies?

 EJ: It’s much harder to regulate. Non-invasive testing brings a situation with the same ethical dilemmas that accompany invasive testing, but with new regulatory dilemmas that require an updated legal framework.

 BB: Some might argue that racial profiling exists at security checkpoints in airports or other public areas. Do you think this type of technology will increase, decrease, or not alter current practices of racial profiling?

 EJ: The MALINTENT scanner might lend scientific credibility to what will be the “rounding up” of the  usual suspects. It suggests that there is some objective scientific basis for racial profiling even though humans will be interpreting the scanner results, as well as deciding who gets the subsequent additional testing. It will be much harder to accuse someone of racial profiling if a machine is implicated and the human component is said to be absent, when in reality, that is just not the case.

 BB: But will juries deny this same human component?

 EJ: It is indeed hard to say what juries will think, but juries latch on to facts; they want a causal relationship that this scanner cannot provide. Giving a suspect a percent based risk profile makes sense only on a statistical level, not on an individual one. The interesting thing about scientific evidence is that something which can be presented as “objective scientific fact” has real weight with juries, perhaps more weight than it should. What doctors work with is uncertainty, but what courts want is certain fact. For example, there have already been huge issues surrounding the accuracy of DNA profiling.

 BB: Ok, how would you feel if you had to go through this scanner?

 EJ: I’d feel quite nervous that they were going to pull me over! Who isn’t nervous when they’re going through the airport? I would hate to be one of the false positives.

 BB: So can we depend on trained security intelligence with emerging scientific technology such as this scanner?

 EJ: If you trust the machine, the human person becomes dependent on the machine, instead of intelligence methods. I think widespread use of this scanner will actually decrease security personnel’s actual intelligence when it comes to security threats. After the September 11th terrorist attacks, I had a worrisome experience travelling internationally. After going through numerous security checkpoints where I had to remove my shoes, my belt, etc…had my bag searched, I realized no one had actually looked at my passport! Even if intelligence doesn’t decrease, I worry that people with explosives under their jumper don’t feel like they’re doing anything wrong so they won’t exhibit the nonverbal cues that alert the scanner, but some man going to visit his mistress will.