Re: Talk of Banning Research into Human Cloning (fwd)

[Tim May <tcmay@got.net>]

At 8:02 AM -0800 1/13/98, Michael Froomkin (as Anonymous) wrote:
>> > There is no ban on publishing information on cloning, "just" a ban on the
>> > activity.
>>
>> Spin doctor bullshit. Without the research there isn't anything to publish.
>> By banning the basic research we would in fact be banning the publishing of
>> the results of that scientific research.
>
>This is a more significant difference than you let on: if the research is
>done abroad, it can be published here.  To the extent that one can
>theorize without experimenting, that too can be done here.

I don't believe we know yet what the proposal is. I've heard some versions
which allow any and all research up to, but not including, the actual
production of a viable human clone. And I've heard versions being proposed
which would push the ban further back down the line.

As I have made clear, I don't believe "banning research" which is neither
"commerce between the states" nor a direct harm to others (as the "robbery"
example Michael Froomkin used earlier as a parallel is), is supported by
the Constitution.

Just as I don't believe "banning activity X" is generally supported unless
there is some constitutional mention.  To pick some examples, banning
research into UFOs would not be supported. Banning jumping on pogo sticks
would not be supported. Banning possession of wool sweaters would not be
supported.

(I could go on, but won't. There are degrees of what "unconstitutional"
means. I take a civil libertarian, even libertarian (of course), view about
what is an acceptable role for government and law. We have debated this
many times, and I have no time to debate Michael again on this issue.
Suffice it to say I think it completely inappropriate, and
"unconstitutional," for government to ban research.)


>Congress has the power to choose whether to ban acts when the cause a harm
>(fists that connect to federal noses), or just to ban acts whether or not
>they cause harms (sending threats to government officials; broadcasting
>without a license on an unused frequency).  Like it or not, there is no
>question that most of these bans -- including the cloning ban -- are
>constitutional under the commerce and other powers, the copyrights clause
>notwithstanding.

This broad use of the commerce clause could of course be applied to ban
almost any activity. I don't think the Founders had this in mind, but,
again, I have a civil libertarian view of such things.

If the commerce clause is claimed to apply to cloning--how, by the
way?--then it can apply to mathematical research, linguistics research, and
just about every other kind of research.

And if the cloning ban is a ban on research in certain areas, as many are
pushing for (but, again, the final laws have not been proposed, much less
passed, so we'll have to wait), then is this not prior restraint on
publishing?

(BTW, most of the "effort" toward human cloning will be the 99.5% of  the
research, publication, discussion, etc. leading up to the final
implantation. If the ban is to have any meaning, it must hit this 99.5%,
just as the end of Federal funding has targetted this 99.5%. To wait until
the final act is too late, as that can then be done in a foreign lab...or
in any number of U.S. labs which the Clone Police will of course be unable
to monitor!)


>PS.  I killfiled this guy ages ago on the grounds of rudeness, general
>unpleasantness, and especially a complete and utter incomprehension about
>how the law in this country operates.  It is as if someone once read some
>software company's publicity about how easy it is to operate their
>software and concluded they should therefore be able to write programs in
>any language.


Yeah, I've gone back to killfiling him, too. Too many rants, too many
forwardings of online news articles, and, as you say, a peculiarly
literalist interpretation of the Constitution. (I also have somewhat of a
literalist interpretation, but hopefully a more justified one.)

>Since someone forwarded me this post, I'm replying to it, but I doubt I'll
>bother doing so in the future.  I entered this thread because Tim May made
>some comments; I respect his writing and I think other people probably do
>too.  As a result, it seemed important to offer some basic doctrine as a
>response.  Note, again, that I'm not expressing a view on the MERITS of
>the legislation, just one law professor's view on whether courts would be
>likely to uphold it if it passes.

I think Michael Froomkin has far too expansive a view of the powers granted
government in the Constitution. The frequent citing of the commerce clause
and "other powers" can be used to argue that government has the power to
regulate just about everything, to tell people what kind of clothing they
can wear (they might cross state lines), to limit access to research
(commerce again), to tell them whom they must hire and whom they may not
hire (Civil Rights Act), and so on.

At least most proponents of draconian new laws restricting crypto, for
example, adopt the fig leaf of talking about "compelling national
interests" and suchlike. They don't simply cite the commerce clause as the
basis for restricting crypto.

(Even flakier arguments, in my view, are ones based on nebulous "public
welfare" arguments. These can be used to ban nearly anything, from the
eating of meat to the location of casinos to the licensing of
broadcasters....a recipe for a total state.)

It'll be interesting to see if the ACLU steps into the "ban on cloning,"
especially any possible (and likely, I think) "ban on cloning research"
laws. If they accept Prof. Froomkin's argument that such a ban is ipso
facto constitutional, I'd be surprised.

And, like Froomkin, I'm not arguing for the merits or demerits of human
cloning research (though I believe it's already unstoppable, and any ban
will simply move it into the "bootleg research" area, which tickles my
crypto anarchist interests anyway!). And I hope the ACLU would not argue on
the basis of merits or not of such research.

--Tim May


The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^2,976,221   | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."