Sometimes advances in science and technology bring in their wake moral, ethical, legal and political dilemmas. That must be a corollary of the Law of Unintended Consequences.
Years ago Myriad Genetics, based in Utah, patented some genes known as BRCA1 and BRCA2, which are associated with hereditary breast and ovarian cancer.
European courts struck down the patent as to whether it would be binding on uses of the gene information and processes using it in determinations of special susceptibility to those cancers.
Myriad Genetics still claimed licensing and royalty rights based on the patents in question, in the United States. Mind you, MG did not do the work of isolating those genes, nor invent the uses of the isolated gene in diagnostic procedures. But often patents are issued to the party that buys some right or other and gets to the patent office first.
Come to that, pharmaceutical companies commonly patent drugs they did not develop. Big Pharma is not so heavily into research as we might imagine. It sponsors some, but our government sponsors much more. Drug companies buy certain rights and patent thousands of formulas and processes they bought from the discoverers or the discoverer’s sponsors.
Previous court skirmishes over several years have brought the matter before the U.S. Court of Appeals for the Federal Circuit.
And now the U.S. government has filed a friend-of-the-court brief, in the suit filed by the American Civil Liberties Union (ACLU) and the Public Patent Foundation (PUBPAT) challenging patents on human genes.
The suit was filed in May of 2009. The suit claims that such patents unfairly stifle research that could result in cures, and diagnostic use of knowledge, and treatment modalities that could enhance survival rates for women with certain cancers.
This past March a federal court rules that the BRCA1&2 patents are invalid. Myriad appealed.
The government brief says, “The chemical nature of native human genes is a product of nature, and it is no less a product of nature when that structure is ‘isolated’ from its natural environment than are cotton fibers that have been separated from cotton seeds or coal that has been extracted from the earth.’”
In another tech-related federal court ruling, a federal district court in Seattle, Washington has ruled that the North Carolina Department of Revenue’s demands for information about Amazon.com customers’ purchases violate the U.S. Constitution as well as the Video Privacy Protection Act.
The NC tax agency wanted records about our purchases and shopping habits, as known to Amazon and held in their data storage.
Amazon did come across with
information about items purchased, dates of purchases,
amounts paid, and counties to which items were shipped. North Carolina acknowledged that was the information needed for use in assessing sales taxes.
What Amazon would not turn over was customer identity records and links between specific customers and their purchases. The state tax agency continued to demand that information. Amazon sued.
ACLU intervened on behalf of several NC residents who thought information about their purchases of movies, books, music and some other goods would reveal highly personal details of their lives.
The court agreed that government does not have a right to learn such personal stuff about individuals. This is the latest ruling declaring that the First Amendment restricts government’s ability to go after information about our personal reading (or viewing or listening) habits.
The court pointed out that even the prospect of government intrusion by tracking such habits or choices if harmful. We might come to fear buying online generally, or fear buying perfectly legal items online or at all (will store records be next? will data shared across chains be deemed necessary to some government agency?
Another ruling many of us welcomed came when a New York federal court ruled that The Constitution does obligate law enforcement agents to get warrants based on probable cause in order to obtain historical cell phone location information. But in another ruling, it was noted that judges may apply the probable cause standards before granting warrants, but are not obligated to do so.
It boils down to no warrantless snooping into historical cell phone location data—but warrants are not very hard to get.
But—now in a matter with the ACLU on one side and Electronic Frontier Foundation on the other, a judge in Texas has held that warrantless disclosure of cell site data violates the Fourth Amendment.
Before, it has been ruled that cell phone locations could be tracked when the phones were in use. Then the government sought to track locations whether or not the phones were in use.
The ACLU not only agrees that government should not track us when our phones are not in use, but also insists that government or law enforcement should have to obtain warrants prior to any such tracking, and those warrants should be based on probable cause.
What say you?