You are here: Home / Archives for Legal

The Last Place on Earth

February 15, 2012 By Leave a Comment

Antarctica has been in the news quite a lot recently.  We have just passed the 100th anniversary of Amundsen’s and Scott’s attainment of the south pole.  Al Gore recently traveled to the continent as part of his Climate Reality Project.  And, most interestingly, Russian scientists finally pierced the 3.8-km-thick ice shield to penetrate the surface of Lake Vostok.  The project hopes to identify an ecosystem in a lake that has been isolated from the remainder of the planet by the Antarctic ice for some 15 million years.

There are any number of ideas floating around amidst the excitement, mostly centering on the potential for information obtained from Lake Vostok to inform us about patterns of evolution on our own planet and to provide further insight into the possibility that life could evolve on planets or moons having similar conditions.  The Jovian moon Europa, for instance, has an icy crust with a liquid ocean underneath that some astrobiologists have speculated could support life.

Work in Antarctica is highly seasonal, and with the current season now coming to an end, actual collection of water and sediment samples (perhaps using an underwater robot) will not be performed until the Antarctic summer of 2012 – 13.  The Russian research is also likely to be complemented by projects planned for that season by British and American scientists.  The British Antarctic Survey plans to cut through the icecap into Lake Ellsworth while the Americans plan to investigate Lake Whillans.

There is undoubtedly an element of competition among the Russian, British, and American teams that is perhaps reminiscent of the “race for the south pole” between the Norwegian and British teams led by Amundsen and Scott a century ago.  But at the same time, Antarctica is a place where it is easier to set aside national chauvinism in favor of an idealized cooperative approach to science undertaken by a singular humanity.  It is within this context that I want to discuss a question that has a superficially simple answer.

Who owns Lake Vostok?
The easy answer of “no one” is perhaps the answer most commonly given because no national territorial claims are enforced in Antarctica.  But a fuller answer is more complex.  While it is true that no national territorial claims are enforced, that does not mean such claims do not exist.  Indeed, during the early part of the twentieth century, seven nations asserted territorial claims, some of which overlap:  Chile, Argentina, France, Norway, Great Britain, New Zealand, and Australia.  Those claims still exist but have been “frozen” in accordance with a series of agreements that are collectively known as the “Antarctic Treaty System” (who says treaty makers do not have a sense of humor?).

The initial Antarctic Treaty went into effect in June, 1961 and included the United States and the Soviet Union in addition to the seven claimant nations, as well as Belgium, Japan, and South Africa.  While not claimant nations, the United States and the Soviet Union were given special status in Article IV of the treaty as reserving the right to make territorial claims in the future; nations that have subsequently ratified the treaty have agreed not to advance any claims of their own.

All of this continues to be relevant because Antarctica has importance that goes beyond its scientific value.  Fifty percent larger than all of Europe, Antarctica is believed to contain vast stores of mineral resources and — importantly — oil.  The original Antarctic Treaty said nothing about how to treat discoveries of such resources, but the Madrid Protocol, negotiated in 1991, places a 50-year moratorium on mining and oil-exploitation activities in the Antarctic.  That moratorium may be lifted earlier than the 50-year term if there is agreement among certain parties to the treaty.

The original territorial claims, which date back to Britain’s first claim in 1908, were based on traditional legal rationales for asserting sovereignty, including discovery, occupation, geographical proximity, and geographical affinity theories.  Since those territorial claims are merely “frozen” by the Antarctic Treaty System, many of the activities that take place in the Antarctic need to be viewed with a somewhat jaundiced eye.  There is no doubt that the scientific research that takes place is valid and important, but much of the national support of that research is funded with a greater objective of continuing to consolidate territorial claims.

Consider, for example, Emilio Marcos Palma, the first human being born on the continent of Antarctica.  An Argentine national, Palma’s birth was coordinated through the efforts of the Argentinean government as a form of colonization of the territory it claims.  He was born January 7, 1978, and eight years later, the Chilean government followed suit, arranging for the birth of Juan Pablo Camacho in Antarctica.  Both men were born in a part of the continent that is simultaneously claimed by each of Argentina, Chile, and Great Britain.  When I visited Antarctica last month, one of the residents of the British base at Port Lockroy explained to me, with characteristically wry British wit, “The Chilean and Argentinean governments each sent down a pregnant woman to have a baby.  But we Brits … we opened a post office!”  And indeed, the British do operate a post office out of Port Lockroy in that area.  Their greater motivation is almost certainly part of a plan to solidify their “frozen” territorial claim than out of a genuine need to provide postal services — which are almost entirely used by tourists to send postcards to friends and family.

The author enjoying one of his pastimes in Antarctica

Consider also that the United States operates a base at the South Pole (that also provides a post office), simultaneously straddling the territories of six of the seven claimant nations.  It also operates McMurdo Base between the Ross Sea and the Ross Ice Shelf; that base is a veritable small town, having a population of about 1000 in the summer months.  There is no doubt that a consideration in operating these bases is to establish a pattern of colonization that may serve for a future territorial claim by the United States in accordance with its reserved right under the Antarctic Treaty.

The presence of Russian bases in Antarctica is surely no different, and this fact has not escaped the attention of Australia.  Lake Vostok lies within the territory to which Australia has frozen claims, an area that encompasses about 42% of the Antarctic continent and that is almost the size of the Australian continent itself.  (How Australian does “Vostok” really sound, eh, mate?)  About six months ago, the Lowy Institute, a private Australian think tank, raised concerns about Australia’s ability to preserve its territorial claim, and suggested examining the possibility of involving military personnel in its Antarctic activities.  A copy of the paper can be read here.  The suggestion of involving the Australian military is delicate because of limitations imposed by the Antarctic Treaty (naval activity on the high seas is generally permissible but military activity on land or ice shelves is prohibited).

The Antarctic is one of few truly pristine parts of the planet remaining, and it encompasses a satisfyingly large part of the world.  Many idealistically wish that it will always remain so, and the romantic notion that it might has so far been possible because of its extreme inhospitality to human beings.  Lake Vostok, for instance, is near the southern “Pole of Cold,” which boasts the lowest temperatures on the planet, having once recorded a temperature as low as –89.2ºC (–128.6ºF).  But it is unrealistic to believe it will always remain so as technology continues to evolve and the resources that it houses become more potentially accessible and valuable to nations.  The frozen territorial claims are like a bear in hibernation — quiet, peaceful, and slumbering — but spring always eventually comes.

Filed Under: Biology, Climate change, International Treaties, Legal, Scientific

You Get What You Pay For

February 7, 2012 By 2 Comments

Be careful about provoking scientists.  They can be persistent.

The issue I’m writing about today was first raised a quarter century ago when Henry Herman (“Heinz”) Barschall published two papers in Physics Today about the cost of academic journals.  He performed analyses of various physics journals at the time, based on some widely used metrics that attempt to quantify the “value” of a journal in terms of its reach and citation frequency.  His analyses showed that according to his criteria, physics journals published by the American Institute of Physics (“AIP”) and by the American Physical Society (“APS”), two not-for-profit academic societies devoted to physics in the United States, were more cost effective than other journals, particularly journals produced by commercial publishers.  Copies of his articles can be found here and here.

His articles prompted a series of litigations in the United States and Europe alleging that they amounted to little more than unfair advertising to promote the academic-society journals that Barschall was associated with.  At the time, he was an editor of Physical Review C, a publication of the APS, and the magazine Physics Today where he published his findings was a publication of the AIP.  (In the interest of disclosure, I was also previously an editor of an APS publication and also recently published a paper in Physics Today.  I have also published papers in commercial journals.)  The academic societies ultimately prevailed in the litigations.  This was relatively easily accomplished in the United States because of the strong First Amendment protection afforded to publication of truthful information, but was also accomplished in Europe after addressing the stronger laws that exist there to prevent comparisons of inequivalent products in advertising.  A summary of information related to the litigations, including trial transcripts and judicial opinions can be found here.

The economics of academic-journal publication are unique, and various journals have at times experimented with different models in order to address the issues that are particular to the publication of academic journals.  They have as their primary function to disseminate research results and to do so with a measure of reliability that is obtained by their use of anonymous peer review.  Despite their importance in generating a research record and in providing information of use to policymakers and others, such journals tend to have a small number of subscribers but relatively large production costs.  Consider, for instance, that Physical Review B, the journal I used to work for and one of the journals that Barschall identified as most cost-effective, currently charges $10,430 / year for an online-only subscription to the largest research institutions, and charges more if print versions are desired.

While commercial journals have generally relied upon subscription fees to pay their costs, academic-society journals have been more likely to keep subscription fees lower by imposing “page charges” that require the authors to pay a portion of the publication costs from their research budgets.  The potential impact on their research budgets has sometimes affected researcher decisions about where to submit their papers.  More recent variations on economic models distinguish among subscribers, charging the highest subscription rates to large institutions where many researchers will benefit from the subscription, and charging lower subscription rates to small institutions and to individuals.  All of these economic models have needed to compete more recently with the growing practice of posting research papers in central online archives, without fee to either researcher or reader.  The reason that traditional journals still exist despite the presence of these online archives is that they provide an imprimatur of quality derived from their use of formalized peer-review considerations that are still relied on by funding bodies and other government agencies.

As reported this weekend in The Economist, Cambridge University mathematician Timothy Gowers wrote a blog post last month that outlined his reasons for boycotting research journals published by the commercial publisher Elsevier.  A copy of his post can be read here.  The post has prompted more than 2700 researchers to sign an online pledge to boycott Elsevier journals by refusing to submit their work to them for consideration, by refusing to referee for them, and by refusing to act as editors for them.  My objective is not to express an opinion whether such a boycott is wise or unwise.  The fact is that journals compete for material to publish and for subscriptions.  While they accordingly attempt to promote distinctions that make them more valuable than other journals, they are also affected by the way their markets respond to those distinctions.

What is instead most interesting to me in considering the legal aspects of this loose boycott is the extent to which it is driven by a general support among commercial publishers for the Research Works Act, a bill that was introduced in the U.S. Congress in December and that would limit “open access” to papers developed from federally funded research.  The Act is similar to acts that have been proposed in 2008 and 2009.  Specifically, it would prevent federal agencies from depositing papers into a publicly accessible online database if they have received “any value-added contribution, including peer review or editing” from a private publisher, even if the research was funded by the public.

The logic against the Act is compelling:  why should the public have to pay twice, once to fund the research itself and again to be able to read the results of the research it paid for?  But this logic is very similar to the arguments raised decades ago against the Bayh-Dole Act, which allowed for patent rights to be vested in researchers who developed inventions with public funds.  The Bayh-Dole Act also requires the public to pay twice, once to fund the research itself and again in the form of higher prices for products that are covered by patents.  Yet by all objective measures, the Bayh-Dole Act has been a resounding success, leading to the commercialization of technology in a far more aggressive way than had been the case when the public was protected from such double payments — and this commercialization has been of enormous social benefit to the public.

The Bayh-Dole Act has been successful because it provides an incentive for the commercialization of inventions that was simply not there before.  This experience should not be too quickly dismissed.  In the abstract, the Research Works Act is probably a good idea because it provides an incentive for publishers to provide quality-control mechanisms in the form of peer review that allows papers to be distinguished from the mass of material now published on the Internet without quality control.  This is worth paying for.  But the Act also has to be considered not in the abstract, but instead in the context of what not-for-profit academic societies are already doing in providing that quality control.

The ultimate question really is:  Are commercial publishers providing a service that needs to be protected so vitally that it makes sense to subject the public to double payment?  The history of the Bayh-Dole Act proves that the intuitive answer of “no” is not necessarily the right one.  But what the commercial publishers still need to prove in convincing the scientific community that the answer is “yes” is, in some respects, no different than the issue Heinz Barschall raised 25 years ago.

Filed Under: Federal Regulation, Intellectual Property, Legal, Patent Law, Physics, Scientific

Pleading the Fifth

January 29, 2012 By Leave a Comment

In 1637, John Lilburne was accused with the crime of shipping seditious books into England from Holland.  Forced to appear in the now-infamous Court of Star Chamber — so-named because of the stars painted on the roof of the room in which its proceedings were held — Lilburne refused to swear the “oath ex officio.”  That refusal was intimately related to the ultimate abolition of the Court of Star Chamber by the English Parliament in 1641 and to the development of one of the most important modern legal rights, the right against self-incrimination.

John Lilburne

Derived from ecclesiastical Courts of Inquisition, the oath ex officio compelled an individual to answer all questions put to him truthfully, and was typically administered to those about to be accused of a crime but before being advised of the nature and scope of the charges.  Because it was complete in scope, requiring a truthful answer to any question, it became a convenient mechanism for forcing self-incriminating testimony, and was increasingly abused by the Court of Star Chamber as its proceedings became ever more secret and politically oppressive.

Like so many of the men and women who prompted the development of rights that we (perhaps too complacently) now take for granted, Lilburne was, by all accounts, an argumentative and combative man.  One of his contemporaries commented that “if John Lilburn were the last man in the world, John would fight with Lilburne, and Lilburne would fight with John.”  But this characteristic of steadfast defiance was instrumental in effecting the ultimate abolition of the Court.

After several appearances in which he refused to swear the oath, Lilburn was sentenced to a fine of £500, punishment in the pillory, and imprisonment until he acquiesced.  He was whipped more than 200 times in the street on his way to the pillory, where he harangued the gathering crowds that no one should be forced to accuse himself of a crime.  During the time of his imprisonment, which included at least one four-month period of solitary confinement, he wrote nine pamphlets.  As part of these efforts to compel him to swear the oath — without even yet addressing his alleged crime of importing seditious books — Lilburne spent nearly three years imprisoned.  It was only finally when the Long Parliament met near the end of 1640 and was inspired by a speech delivered by Oliver Cromwell that action was taken to release victims of the Court of Star Chamber’s oppression, including Lilburne.

Lilburne’s example was one of several that served to develop the modern concepts of a presumption of innocence, the right not to incriminate oneself, and the recognition that the refusal to answer an incriminating question carries no implication of guilt.  For hundreds of years now, these have formed part of the bedrock of criminal law and we are all too aware of the potential for oppression by the state when they are relaxed.  In the United States, the right not to incriminate oneself is, of course, enshrouded in the Fifth Amendment of the Bill of Rights:  “No person … shall be compelled in any criminal case to be a witness against himself.”

That right was implicated in a case in Colorado this week that is interesting because of its involvement of modern electronics technology.  The Fifth Amendment right is being asserted by Ramona Fricosu, who was indicted in 2010 on charges arising from allegedly fraudulent real-estate transactions.  As part of its investigation, the government seized, under warrant, six computers from her home, one of which is a laptop whose contents are encrypted.  Suspecting that the encrypted contents contain information relevant to its investigation and likely to be incriminating, the government has sought to compel Fricosu to type her password into the laptop so that the contents can be read.  She has refused.

This week, the U.S. District Court for the District of Colorado ordered that Fricosu supply an unencrypted copy of the contents of her laptop to the government by February 21, 2012, presumably by typing her password into the device.  A copy of the order can be read here.  If Fricosu continues to refuse, she may be punished for contempt of the court’s order.

There is no doubt that modern digital encryption techniques have an important and legitimate function.  The very existence of electronic commerce depends fundamentally on the use of such techniques, and there have been increasing recommendations issued by electronic-security professionals to routinely encrypt the content of electronic devices as a precaution against loss or theft.  Sensitive personal and business information is now commonly stored on such devices, and encryption is the only effective mechanism for preventing unauthorized access to the information.

Fricosu’s case is, in some ways, a difficult one.  This is not an instance in which the government has an inchoate suspicion that there is something incriminating on the laptop, but rather one in which there is sufficient evidence to support the probable cause for issuing a warrant.  It is therefore easy to understand the court’s order and to have sympathy with the desire by police simply to read what they have legitimately seized as part of their investigation into a crime that defrauded others.

But at the same time, I have considerable discomfort with the order precisely because of the Fifth Amendment implications.  It is a mistake to view this case purely through the procedural lens of the Fourth Amendment and to be satisfied that the police have complied with all warrant requirements.  History has taught us of the dangers of vesting the state with the power to compel self-incrimination by individuals.  The potential for oppression is sufficiently great that free societies have determined that it is better not to vest the state with that power.  There may be some cases in which the burden on the government to prove guilt is greater, and some even in which guilty persons are not convicted because the burden is too great to satisfy.

But this is the cost we have agreed to pay for maintaining a barrier against abuses that we have recognized as being too seductive to governments in the past.

Filed Under: Constitutional Law, Legal, Scientific

JuriSnippet: Recent Developments in US Patent Law

January 3, 2012 By 1 Comment

The magazine Physics Today published my article on the impact of the new US patent laws on scientists.  It can be found here, and the magazine has made it available free.

Filed Under: JuriSnippets, Legal, Patent Law

Knowing Sin

December 30, 2011 By Leave a Comment

One of the most famous quotations attributed to J. Robert Oppenheimer was made in a lecture he delivered at MIT in 1947, a little more than two years after the destruction caused by detonation of two atomic bombs in Japan to bring a decisive end to the second World War.  The more than 100,000 deaths that resulted from one of the best organized scientific projects in history still epitomize the potential that scientific activities have in providing tools for devastation.  Oppenheimer said:

Despite the vision and farseeing wisdom of our wartime heads of state, the physicists have felt the peculiarly intimate responsibility for suggesting, for supporting, and in the end, in large measure, for achieving the realization of atomic weapons.  Nor can we forget that these weapons as they were in fact used dramatized so mercilessly the inhumanity and evil of modern war.  In some sort of crude sense which no vulgarity, no humor, no overstatement can quite extinguish, the physicists have known sin; and this is a knowledge which they cannot lose.

J. Robert Oppenheimer

I was reminded of Oppenheimer earlier this month when the U.S. National Science Advisory Board for Biosecurity (“NSABB”) made the decision to interfere with publication of scientific research in the name of security.  The NSABB is an advisory committee whose origins are found in the Committee on Research Standards and Practices to Prevent the Destructive Application of Biotechnology, convened by the National Academies in 2002 when the widespread fear precipitated by the anthrax attacks of 2001 was still fresh in people’s minds.  The so-called “Fink Report,” eponymously named after the chair of the Committee, included a number of recommendations intended to “ensure responsible oversight for biotechnology research with potential bioterrorism applications,” one of which was the creation of the NSABB.  A copy of the report can be found here.  The primary focus of the NSABB is oversight of “dual-use research,” i.e. biotechnology research that may have both legitimate scientific purposes and that may be misused to cause threats to public health.  In many ways, the comparison with nuclear research is apt because of the potential for nuclear research to find beneficial applications in power generation and medical imaging as well as its infamous destructive applications.

The action taken this month by the NSABB represents its first intrusion into the independent publication practices of scientific journals.  The issue is research on H5N1 bird-flu mutations by Dutch scientists that would allow considerably easier human transmission of the virus — which has mortality rates in the neighborhood of 60%.  While there is a fear of potential terrorist uses, there is no question that the research also has important public-health and viral-research implications.  In its press release, the Board noted that it had asked editors of Science and Nature, as well as the authors involved, to suppress what is, by any measure, information long viewed as essential to the need in scientific research to reproduce the results of others:  “[T]he NSABB recommended that the general conclusions highlighting the novel outcome be published, but that the transcripts not include the methodological and other details that could enable replication of the experiments by those who would seek to do harm.”  A copy of the full press statement issued by the Board can be found here.

The whole notion of limiting access of details only to those who would not “seek to do harm” is, of course, problematic.  One need only recall the anthrax attacks of 2001, which in many ways provided the original impetus for formation of the NSABB itself.  During investigations of those attacks, the two individuals most prominently identified as the subjects of interest by federal prosecutors were U.S. biodefense researchers who had access to classified information.  Restriction on publication of information by journals like Science and Nature would have had no effect in preventing those attacks, but would still remove valid scientific information from the public archive.

Many viral scientists have objected to the move by the NSABB, characterizing it as a form of censorship, which it indeed is.  I admit to considerable sympathy with the views of those critics, and again turn to Oppenheimer, whose words capture the sentiment that most scientists share:

There must be no barriers to freedom of inquiry….  There is no place for dogma in science.  The scientist is free, and must be free to ask any question, to doubt any assertion, to seek for any evidence, to correct any errors.  Our political life is also predicated on openness.  We know that the only way to avoid error is to detect it and that the only way to detect it is to be free to inquire.  And we know that as long as men are free to ask what they must, free to say what they think, free to think what they will, freedom can never be lost, and science never regress.

Is this a hopelessly naïve and unrealistic view?  While I desperately wish it were not, and while I normally argue as passionately as I am able that science is better for its openness, I also have sober moments when I pause uncertainly.  I encourage those who wish to understand both sides of this particular issue to read the blog post by virologist Vincent Racaniello here, particularly the comment added by NSABB member Mike Imperiale.

As an attorney, I frequently find myself defending reports of jury decisions that strike much of the public as outlandish.  My usual response is that it is astonishingly presumptuous to suppose that spending five minutes reading a short news report of a verdict can in any way compare to the weeks of deliberation and examination of documents that caused twelve people to come to some agreement about the issue.  As I face my own initial distaste for suppression of legitimate scientific information, I think of the time that the members of NSABB presumably spent grappling with these issues and I am haunted by my own argument — they are far more knowledgeable about biology than I am and surely as sensitive to the need for science to operate in an atmosphere of openness.

Still, I expect that no matter how genuine their efforts to prevent it, it is merely matter of time until biologists know sin in the way physicists of the 1940’s did.

Filed Under: Biology, Federal Regulation, Legal, Scientific
« Older Posts