New Information Frontiers

For several years I've remembered a side remark by a Canadian author who described the work of a historian who theorized that the discrepancies between US and Canadian settlement of the West was due in part because the US, even after the Civil War, were more still a league of self interested states whose emigrating population settled and established new states of order whilst Canada's commercial frontier and missionary work combined with exploratory policies of a distant imperial government established order before the people arrived. The city of Deadwood as captured in the eponymous TV show, a town that had no right to exist under Federal treaty law, simply would not exist in Canada since the Royal Northwestern Mounted Police would have established an outpost across the river and was ready to enforce the laws of parliament. US authorities have a track record of ignoring abuses, at worst, and improvising incomplete solutions, at best.

Here on the frontier of information, stored in genomes rather than books, and increasingly accessible online instead of a library or archive, the national government, in league with state and local governments in the tableau that is the US Federal government, is generally letting the states do as they choose when deciding what constitutes privacy. Under a libertarian interpretation 14th Amendment Congress could enact a privacy or consent laws while maintaining transparency and accountability in local and state records that do not move inter-state, but unless there is a great impetus its reluctance falls back to a strict (by virtue of neglect) interpretation of 10th Amendment and Article IV which inherently muddle the legal environment.

I am unsure how other countries have dealt with this problem but since the wealthier ones that can support vigorous stem cell research are likely in Europe where the parliamentary model prevails, the practical dictatorship of party that occurs after each election is an effective way to create sweeping legislation like a national privacy law or sane stem cell informed consent policies. The American republic is simply too cumbersome and individuated to fix this comprehensively.

This US model has its merits in some arenas, however. The Senate, formerly appointed by the states, encourages only sustained public pressure for changes and is potentially keeping the Democrats in control until 2012 when the cognitive dissonance of the Republican tax policies relative to the Keynesian Democrats is revealed as the greater evil. Unfortunately it might cost Russ Feingold, a far more deserving statesman than the lethargic Herb Kohl, his job simply because of bad timing. The federated approach is what lets 12 states have medical marijuana laws in an affront to national law. These eventually atrophied the Justice Department's in-state enforcement into 10th Amendment Land where it belongs. Too often the constitutional nuances are neglected when these problems are considered and I can guarantee states will chafe under any attempt for comprehensive privacy laws if for the only reason being an eradication of case law.

I am not appealing to the Constitution for the sake of legal nuance. I don't find legal squabbles as an aesthetically satisfying sign that our country is doing well but this systematic problem is a symptom of what makes America great. It will be solved as it always has--piecemeal until the various parties involved have assembled and had a chat about what's important to them and why. There's nothing unconstitutional about the states getting together to create a and agree upon an amendment to the Constitution should something be important. Until then defenders of privacy and public accountability or researchers should work within the arenas available and of which they have local control to make effective policy that satisfies them in part because they created it themselves.

It is also the responsibilities of the citizens to appraise themselves of laws before they act. Ignorance of the law, at least now that Miranda v. Arizona has been neutered, is seldom an excuse. Last year a man in his early 20s had sex with an emotionally fragile 17 year old girl in the High School where he worked because he looked up the age of consent laws but failed to consider that persons in authority are treated distinctly. This ignorance on the part of the genetic donors is inexcusable and the clinic, being the party that has an obviously greater interest in this narrow aspect of state and federal law in addition to professionally adopted practices, bears the greatest responsibility to provide information and receive consent. Just don't expect the national government to come up with something comprehensive.