Focusing public attention on emerging privacy and civil liberties issues

Privacy Implications of Nanotechnology

By Eva Gutierrez for the Electronic Privacy Information Center*

Introduction

The field of nanotechnology began in 1959, when Caltech physicist Richard Feynman gave a talk titled, There's Plenty of Room at the Bottom, hypothesizing that atoms and molecules could be drastically manipulated.[1] Nanotechnology emerged as a viable prospect in 1982 when IBM researchers used the scanning tunneling microscope (STM) to display individual atoms of gold, and then later in 1989 when another team of IBM researchers manipulated thirty-five atoms of xenon to form the letters "IBM."[2] Today several universities offer advanced degrees in nanotechnology and the federal government is a leading source for funding nanotechnology research and development.

This essay seeks to investigate the societal impact of nanotechnology research and development, particularly on the area of individual privacy. Part I will present a brief overview of what nanotechnology is, as well as its future potential uses and possible risks. Part II examines the federal government's current role in nanotechnology research, specifically focusing on the federally funded program, the National Nanotechnology Initiative, as well as the National Institutes of Health, the Food and Drug Administration, and the Department of Defense. Part III presents a synopsis of private sector efforts in nanotechnology advancements, and how other countries are approaching nanotechnology research and development. Part IV discusses some of the current challenges facing nanotechnology research and development. Finally, Part V examines the societal implications of nanotechnology, specifically focusing on the potential privacy risks and suggests possible ways in which to address these issues.

Part I: What is Nanotechnology?

The National Nanotechnology Initiative, a US federally funded program involved in nanoscale research, defines nanotechnology as science with the following criteria:

"(1) Research and technology development at the atomic, molecular or macromolecular levels, in the length scale of approximately 1 to 100 nanometer range; (2) creating and using structures, devices and systems that have novel properties and functions because of their small and/or intermediate size; and (3) the ability to control or manipulate on the atomic scale."[3] Nanotechnology is derived from the prefix "nano" (one billionth), and essentially, this form of technology involves materials that are smaller than 100 nanometers (one billionth of a meter).

When discussions involve the nano scale, it is important to understand the answer to the question , "how small is small?" For a little perspective, a head of a pin is 1-2 millimeters, or an ant is about 5 millimeters. It would require about a 1 to 2 million nanometers to fill a space the size of a head of a pin, or 5 million nanometers to equal the size of an ant. Generally matter on the nano scale is referred to as nano-particles.

The hope of nanotechnology research and development is the creation and use of structures, devices, and systems that have novel properties and functions because of their size. This new technology is believed to have the potential to fundamentally transform the way in which common products are produced by manipulating their component parts on the atomic level. This manipulation is hoped to result in the manufacturing of products that are smaller, stronger, and lighter than those available today. In the future, nano manufactured products may not appear to be any different in appearance than products you see everyday, but in their strength, longevity, and weight they will be revolutionary.

To create such nanotech materials and products, scientists use special instruments, tools, and computer systems to measure and manipulate nanoparticles to achieve unique reengineering of matter at the atomic level.[4] While the applied use of nanotechnology is limited at the present time, this technology is already being incorporated into number of commercial areas. The most widely commercially available industries involving nanoparticles are reportedly chemical-mechanical polishing, magnetic recording tapes, sunscreens, automotive catalyst supports, biolabeling, electroconductive coatings, and optical fibers.[5] There are products on the market today that incorporate the use of nanoscale materials, such as stain-resistant fabrics, fresh food packing, bumpers on cars, sunscreens and cosmetics, protective and glare-reducing coatings for glass, dental-bonding agents, ink, and even longer-lasting tennis balls.[6] Furthermore, medical researchers are presently working at the nanoscale to develop new drug delivery methods, therapeutics and pharmaceuticals.

Nanotechnology is considered to be in its 'pre-competitive' stage, which federal government defines it as having limited application for commercial use. However, its potential is anticipated to be very great in both commercial and non-commercial application.[7] For this reason, federal resources are being made available for work in research and development on several key research and development areas of nanotechnology: biology, materials research, medical, and defense applications.

A: The Potential of Nanotechnology

The promise of nanotechnology as a panacea for all that ills society may be greatly overstated at this point of its research and development. Some of the predictions by researchers and advocates include: heart-fixing nano-computers; bioengineered tissues to replace damaged or diseased tissues; gene therapy, retinal implants;[8] the earlier detection and characterization of diseases; advanced implantable drug delivery systems; formulation of tiny storage devices with memory densities sufficient to store massive amounts of data, and new high performance materials.[9] All of which would be greatly sought after and receive broad public support. Further, the intersection of nanotechnology and other emerging technologies in medicine and bioengineering offer the hope that extraordinary developments could occur, such as preventing and curing AIDS, cancer, and other ailments, or helping to clean the environment and increase our energy supply.[10] Already nanotechnology research has led to impressive developments, including a nanoparticle carrier able to cross the blood--brain barrier to deliver a chemotherapeutic drug for the treatment of brain tumors[11] and gold nanoparticle probes that detect DNA from biological warfare agents such as anthrax.[12]

Current research indicates the positive potential nanotechnology can have on the environment. For example, a study conducted by Lehigh University demonstrated that nanoscale iron can effectively clean up contaminated soil and groundwater. The study showed reduction of chemicals in the soil by as much as 96 percent. The declining cost of production of nanoscale iron declining over the past eight years makes it an increasingly attractive method of soil reclamation.[13] Products using nano-composites have been proposed for decontamination of clothes and surfaces exposed to biological agents, while other nano engineered products have similar effect on the skin.[14] Furthermore, Tom Kalil of the University of California at Berkeley, asserts that engineered nanospheres, which resemble tiny molecular cages, can trap polychlorinated biphenyls (PCBs) and toxic metals, inducing environmental cleanup.[15]

Moreover, computer technology may be tremendously enhanced through the use of nanotechnology. IBM, for example, has been working on the Millipede project which is designed to produce an experimental prototype of a new storage medium with 20 times the density of current hard drives, but inexpensive to manufacture.[16] Similarly, Hewlett Packard is presently using a chemical process to make grids of nanowires, only a few atoms thick, and manipulating molecules to function like a microprocessor, both applications could lead to incredibly small storage devices.[17] Additionally, Intel has plans to produce a TeraHertz transistor hopefully by the year 2005 based on a recent development of a microchip at the nano level.[18] This microchip would have 25 times the number of transistors as a Pentium 4 processor and run at 10 times the speed without increasing power consumption.[19] This single advance in transistor technology would super charge the pace of computer technology innovation known as "Moore's Law."

There are certain impressive products that are already scheduled to be available over the next few years because of the use of nanotechnology. For example, solar cells in roofing tiles and siding are expected to provide electricity for homes and other facilities.[20] This would lead to a cleaner environment through the use of solar energy, burning less of fossil fuels. There are also great predictions for pharmaceutical and chemical industries. It is expected that with the use of nanotechnology, advanced drug delivery systems will soon be available, including implantable devices that automatically administer drugs, and other medical diagnostic tools, such as cancer tagging mechanisms.[21]

B: The Potential Risks of Nanotechnology

Some advocates of nanotechnology articulate "pie in the sky" promises regarding medical advances that may prematurely moot any debate on the subject of potential negative implications of unchecked broad adoption of the technology. We hear little about the not so socially redeeming application of nanotechnology research and development. Medical applications of technology create a natural support base in a broad cross-section of society, which may be willing to forgo critical analysis of the technology in lieu of perceived benefits. While many researchers speak about the great potential of nanotechnology, others are articulating the potential risks of nanomaterials. Pat Mooney, an activist of the ETC Group (Action Group on Erosion, Technology, and Concentration), an organization dedicated to encouraging social responsibility of the production of technology,[22] has called for a moratorium on the commercial production of nanomaterials until its risks are better understood and regulations have been instituted.[23] Mooney raises the issue that normally harmless particles can trigger intense chemical reactions and biological damage when they are produced at the nanoscale and then inhaled. For example, while particles of gold are relatively safe, nanoparticles of gold are actually chemically reactive, and have the potential to disrupt biological pathways.[24] Some scientists have raised question as to whether inhaled nanoparticles can infect not only the lungs, but cross into the brain via nasal cavities or through the placenta into developing fetuses because of their extremely small size.[25]

The environmental risks posed by nanotechnology are equally troubling. While some scientists, have articulated ways in which nanotechnology could help protect or fix the environment, others have pointed out that the technology poses serious new risks to our ecology. For example, titanium dioxide, a generally non-reactive substance used in common products like lotion or house paint, becomes reactive when used at the nanoparticle level. At the nano level, they can burn bacteria.[26] Similarly, these nanoparticles can accumulate in animal organs leading to unanticipated consequences to animals which might be passed on to people. It is quite likely that other substances would have a similar effect on the environment when released at the nanoscale level.

It is important that we make note of the lessons of previous experiments with new technology that may be reactive in the environment. For instance, bioengineered plants intended for industrial applications are finding their way into our nation's food supply. The debate of whether and under what terms bioengineered foods should be eaten by humans could be made moot by this crossover. We should avoid a similar outcome with respect to nanotechnology because the phenomenon of convergence when working on the nanoscale has yet to be fully explored.

Aside from health and environmental risks, one of the major risks of nanotechnology is the overwhelming impact it may have on society. Part V will review how the use of this new technology can raise both security and privacy issues. In this area, the risk arises not from the potentially dangerous inherent nature of the nanotech device or material, but instead from how safe forms of nanotechnology could be used unethically to invade an individual's privacy.

Part II: US Government Regulations and Nanotechnology

The U.S. federal government is heavily invested in creating and maintaining a global leadership role in nanotechnology research and development. The federal government's investment in nanotechnology increased from $116 million in 1997 to $422 million in 2001, to more than $700 million in 2003, to $849 million in 2004.[27] The funding is shared by a broad range of federal agencies that are presently investing in nanotech research and development: Department of Defense, Department of Energy, Department of Justice, Department of Transportation, Environmental Protection Agency, NASA, National Institutes of Health, National Institute of Standards and Technology, National Science Foundation, and the Department of Agriculture.[28]

Although there are a number of governmental agencies involved in nanotechnology research, this work is facilitated and directed by the National Nanotechnology Initiative (NNI). Because of this initiative, the U.S. is the world leader in the development of nanotech products.

A: National Nanotechnology Initiative[29]

The NNI began in November 1996 when several federal agencies began to meet regularly to discuss the current developments in nanotechnology. The group continued to meet until September of 1998, at which time it officially became the Interagency Working Group on Nanotechnology (IWGN).[30] The IWGN published two influential publications: Nanostructure Science and Technology: A Worldwide Study,[31] and Nanotechnology Research Directions,[32] which eventually led to the development of the NNI. In August 1999, the IWGN drafted its proposal for the initiative, and in 2001 President Clinton approved a budget submission and raised the initiative to the federal level: the National Nanotechnology Initiative.[33] The National Nanotechnology Coordinating Office was soon instituted to manage the NNI and for preventing the duplication of efforts.

In December 2003, the '21st Century Nanotechnology Research and Development Act' became public law 108-153, officially codifying the work done by the NNI into federal law. The new law established programs and activities supported by the NNI, authorized $3.7 billion for nanotechnology research and development from 2005 to 2008. This nanotechnology funding effort would primarily support five of the 16 agencies comprising the existing NNI: National Science Foundation, Department of Energy, National Aeronautics and Space Administration, National Institute of Standards and Technology, and the Environmental Protection Agency.[34] As a federal research and development program NNI coordinates efforts among many federal agencies to investigate nanoscale science, engineering, and technology. The NNI is the main way in which nanotechnology is supervised within the US. Sixteen federal agencies participate in the NNI, [35] of which, ten of these agencies have specific budgets for research into nanotechnology.[36] The NNI publicizes its goals as four-fold: "(1) conduct research and development to realize the full potential of this revolutionary technology; (2) develop the skilled workforce and supporting infrastructure needed to advance R&D; (3) better understand the social, ethical, health, and environmental implications of the technology; and, (4) facilitate transfer of the new technologies into commercial products."[37] The work of NNI is balanced across five broad activities: "fundamental research; grand challenges; centers and networks of excellence; research infrastructure; and, the ethical, legal, and social implications, including educational and workforce programs."[38] In addition to federal agencies working together to encourage advances in nanotechnology, the NNI provides funding to universities for nanotech research, and states that it "enables and encourages businesses to pursue opportunities offered by nanotechnology."[39]

Funding for research into nanotechnology has increased tremendously over the past eight years, from $116 million in fiscal year1997 to $864 million in fiscal year2004, and President Bush requested $982 million for 2005.[40] Sixty-five percent of NNI funding supports academic research, and "a substantial portion promotes partnerships between researchers and private enterprise in order to leverage public investment."[41] Thus, the NNI funds more than 100 national nanotechnology centers, encouraging research in the academic, governmental and private sectors.[42]

B: National Institutes of Health

The National Institutes of Health (NIH), receives broad bipartisan support from Congress and leads in non-defense related appropriations for federally funded basic research. NIH is part of the Department of Health and Human Services and receives NNI funds to do research and development in medically related nanotechnology. NIH implemented the Bioengineering Nanotechnology Initiative in 1999 to begin its work on developing nano biomaterial and tissue engineering for medical purposes. In 2002, the NIH spent $59.5 million on nanotechnology research and anticipates that it will spend about $69.6 million in 2004.[43] NIH nanotechnology funding efforts include: the National Cancer Institute's work with Imarx Therapeutics to develop a nanotechnology based targeted delivery system for anti-cancer drugs; the National Heart, Lung, and Blood Institute's collaboration with Biomod Surfaces to develop a nano-fiber technology for use in blood vessel replacements; and the National Institute on Alcohol Abuse and Alcoholism grant to Howard University to support research on injectable nanoparticles that could control delivery and availability of medication for treatment of drug and alcohol addictions.[44]

C: Food and Drug Administration

The Food and Drug Administration (FDA), also operating under the Department of Health and Human Services, is responsible for regulating the safety and effectiveness of most food products, human and animal drugs, therapeutic agents of biological origin, medical devices, radiation-emitting products, cosmetics, and animal feed.[45] The FDA is primarily responsible for regulating nano-medicine, in order to protect the public against unsafe technologies. The FDA, may be primarily involved in regulating: the biological assembly of nanostructures, the use of DNA molecules to construct nanoscale devices; the development of artificial genetic systems, and modeling and simulating biological ion channels to cure diseases.[46] Law student John Miller has recently examined some of the potential issues that the FDA will confront when regulating nanotechnology in his article, Beyond Biotechnology: FDA Regulation of Nanomedicine.[47] He cautions that some of the early applications of nanomedicine that the FDA will confront will relate to gene therapy and tissue engineering, but that it will face a great deal of difficulty in classifying and maintaining strict regulations with the future potential of nanotechnology.[48] Miller further notes that the FDA may have difficulty in obtaining staff with expertise in the nanotech field in order to evaluate new products.[49]

D: Department of Defense

The Department of Defense (DOD) is invested in nanotechnology research and development as it relates to benefits that may accrue in security, surveillance, and construction of materials used in defense technology, and battle field medical applications of nano biotechnology.

In 2001, the DOD announced the development of the Defense University Research Initiative on NanoTechnology (DURINT). The DURINT program is an initiative designed to enhance the capabilities of universities to perform basic science and engineering research and related education in nanotechnology critical to national defense. The program is administered through the Army Research Office (ARO), the Office of Naval Research (ONR), the Air Force of Scientific Research (AFOSR), and the Defense Advanced Research Projects Agency (DARPA). The DURNIT program calls for proposals requesting research equipment and funding to conduct nanotechnology research related to potential national defense. Currently the DOD is working primarily with Massachusetts Institute of Technology, University of California -- Santa Barbara, and the Naval Research Laboratory in the developments of its nano-related projects.[50]

E: National Aeronautics and Space Administration

The National Aeronautics and Space Administration (NASA) which leads our nation's efforts in space exploration has a vital interest in the promise of stronger and lighter materials engineering potential of nanotechnology research and development. The issue of payload cost for each shuttle mission largely centers on the volume of fuel that has to be used to achieve escape velocity from Earth's gravity to achieve orbit. This factor limits the design of the shuttle to one that employs rocket boosters in a vertical setup to launch the shuttle and a glider with limited mobility to land architecture. It is hoped the advances in nano materials would lead to the ability to build shuttles that could take off and land like traditional commercial aircraft because the issue of weight could be reduced. Advances in nanotechnology could also lead to more efficient use of resources like water and air recycling and storage capacity for longer missions, such as the one proposed for Mars by the Bush Administration.

Nanotechnology is seen to offer benefits to human safety concerns by improving health-monitoring technology especially in the case of long-term missions. Nanotechnology may lead to improvements in human productivity by creating partnerships between humans and machines.

Part III: Other Sources of Nanotechnology Funding

In addition to federal government support state governments, private firms, and other countries are also involved in nanotechnology research and development efforts. Those states that do support nanotechnology tend to work through state supported public universities. Discretion for the management of these programs are given to the university's board of trustees. For example, Indiana's Purdue University in 2001 first granted $5 million of state funds to the Birck Nanotechnology Center.[51] Similar efforts can be found at the University of Wisconsin, Western Michigan University, University of Virginia, University of California at Berkeley, University of California at Los Angeles, University of California at Santa Barbara, and the University of Texas.

Aside from state and federal government funding in the US, the private sector is also have and will continue their involvement in nanotechnology research and development funding Joining the U.S. in efforts to develop nanotechnology are other countries, particularly in Asia, who are also contributing significant support to the research and development of nanotech products and nanomaterials.

Government funding for nanotechnology research and development[52]

Year United States Worldwide
1997 $116M $432M
1998 $190M $559M
1999 $255M $687M
2000 $270M $825M
2001 $422M $1.5B
2002 $604M 2.17B

A: Private Sector's Involvement in Nanotech Research

IBM, GE, Intel, and Motorola are among those companies heavily committed to nanotech research and development.[53] In addition, new start-up companies devoted to nanotechnology research and development are emerging, such as, Lux Capital, Molecular Manufacturing Enterprises, Carbon Nanotechnologies and Frontier Carbon, a Mitsubishi Chemical joint venture.[54] The added attention of private interest in the area of nanotechnology has resulted in a strong constituency that offers lobby support for federally funded research and development into nanotechnology. These companies know that many of the new discoveries made by federal laboratories in nanotechnology innovation in engineering methods more than likely will be made available at no cost to the private sector for further development into application in the manufacturing of commercial and industrial products.[55]
A sign that we might be at the early stages of a new "gold rush" based on the anticipated potential of nanotechnology research and development are the numbers of venture capitalists investing in nanotechnology research and development. Venture capitalist invested an estimated $94 million into nanotechnology deals in 2002, which many say is a low figure.[56]
One of the many roadblocks to the development of products based on nanotechnology is uncertainty presented by liability unknowns. Most products and services offered to U.S. consumers have calculated into their cost the potential liability associated with their commercial use. It is not inconceivable that one condition of full industry adoption of manufacturing nanotechnology-engineered products may be that local, state, and federal government shield companies by limiting civil and criminal liability for processes that use nanotechnology to manufacture products for industrial or private consumption.

B: Nanotechnology Outside of the US

Although the US probably accounts for a third of public investments made globally, the next sources of support for nanotechnology comes from European Union and Japan.[57] According to the NNI website, worldwide government funding has increased to about five times what it was in 1997, exceeding $2 billion in 2002.[58] Global public investments in nanotechnology are estimated to approximately $3 billion, with major contributions from not only the EU and Japan, but also from China, Australia, Israel, Canada, Korea, Taiwan, and Singapore.[59]

Global growth in Nanotechnology R&D[60]

Country/Region 1997 2002
USA 432 602
Western Europe 125 400
Japan 120 750
South Korea 0 100*
Taiwan 0 70

* Per year, for 10 years (in millions of dollars)

Over 32 countries have developed some form of national nanotechnology center to increase nanotech research and development in the country.[61] Like other pervasive forms of technology, scientists have already begun to develop annual conferences on nanotechnology related research.

Part IV. Current Challenges of Nanotechnology

In addition to product liability risks, another obstacle to nanotechnology engineered products may be found in the difficulty of economic mass production of many nanotechnology engineered products because of the precision required to achieve the exact placement of millions of atoms. This may make the cost benefit of nanotechnology engineering methods too cost inefficient for mass production of commercial products.[62] It may be that some nanotech devices or nanomaterials are simply too expensive to commercialize, even if they are beneficial to society. Coupled with the liability or potential risks of nanotechnology, and major engineering obstacles to nano manufacturing may make commercially available nano-based products more a legislative and policy matter than a public acceptance of the technology.[63]

A complication to the development policy indented to protect consumers is presented by lack of federal regulation of nanotechnology engineering, manufacturing, and end products. The Department of Labor's OSHA division, the Environmental Protection Agency and the Consumer Products Safety Commission or three key players in the are of consumer safety who have yet to be heard on nanotechnology research and development.

Traditional manufacturing methods require that companies seek regulatory approval to manufacture or distribute potentially toxic substances, they must state what the substance is and how much of the substance will be manufactured or distributed, and then follow specific regulations as dictated by the Toxic Substances Control Act (TSCA), administered by the Environmental Protection Agency (EPA).[64] Such regulations include how to dispose of the toxic substance, limit the amount of the substance that can be manufactured and distributed, give notice of risk of the substance, and require that companies report and keep records of the toxic substance with which they work.[65] However, companies using nanotechnology methods of manufacturing may not have to follow these regulations for toxic materials when producing nanomaterials because many nanoscale substances are nontoxic in ordinary quantities, only becoming so when produced on the nanoscale level.[66]

The TSCA is based on chemical composition, so nanoscale substances would be treated the same as a cube size of the substance. It is known in the field of nano science that new properties arise with new chemical reactivity when working on the nanoscale.[67] One example of such substance is graphite: an increasing number of factories in the US are manufacturing carbon nanotubes, which are made of nanoscale graphite, which is toxic on the nanoscale level, unlike ordinary graphite.[68] Like all factories, nanotube facilities must submit "material safety data sheets" describing the substances they handle and verifying that appropriate measures are in place to keep human exposures below mandated thresholds. However, these data sheets simply address ordinary graphite and not the potential risks of graphite on a nanoscale.[69] Thus, under current regulations, factories producing the nanoscale graphite will fall under the same regulatory guideline of those using graphic in traditional manufacturing methods

Part V: Societal Implications of Nanotechnology

The social implications of nanotechnology encompass many areas, which include: privacy, security, environment, and ethical questions, such as the interactions between humans and nanotechnology engineering medical devices and applications as well as a wide range of consumer products. Many of the privacy risks regarding the technology fall under the development of nanotechnology intended to aid in surveillance of people and places.

Although since its inception, the NNI has included a separate focus on the societal and ethical issues associated with nanotechnology other federal efforts in nanotechnology may not take the same approach. The NNI's major investment into the societal implications of nanotechnology is with the University of South Carolina through the "Philosophical and Social Dimensions of Nanoscale Research Project," where researchers are examining the collective impact of sciences and technology.[71] In 2003, the National Science Foundation alone spent $25 million on societal, ethical, and educational issues related to nanotechnology, another $33 million on environmental and health implications, and gave $3.4 million in grants to universities to address the potential impact of nanotechnology on society.[72] For example, the University of California-Los Angeles has received a NSF grant to research the future commercialization of nanotechnology.[73] One of the major products of this study will be an extensive database on small nanotech companies, and what factors influence how well ideas succeed in the marketplace. "Like any powerful new technology," says NSF Director Rita Colwell, "nanotech also has the potential for unintended consequences--which is precisely why we can't allow the societal implications to be an afterthought. The [NSF] has to build in a concern for those implications from the start."[74] For example, one must consider: what is the long-term impact of incorporating nanoparticles that may be absorbed into the body? What will be their environmental impact on biological systems? How expensive will such technology be and what will the impact be on those that cannot afford such treatment? How will nanotechnology affect health insurance premiums? How will it affect employment?[75]

Mihail Roco, chief of nanotechnology for the National Science and Technology Council, a cabinet-level group that advises the president on matters of science, convened the first federal meeting on the societal implications of nanotechnology in 2000, and has continued to hold work shops on the potential effects of nanotechnology.[76] One of the concerns raised by Roco relates to the likely social and economic disruptions that will result as this technology consumes older manufacturing sectors and replaces workers.[77] With the coming of any new technology, particularly one as potentially revolutionary as nanotechnology, the probability that many will lose their jobs to mass-producing machines is likely.

Some discussion of additional potential threats posed by nanotechnology concerns the advent of self replicating materials and devices on the nano scale. Human capability in purposefully achieving self replicating nano based technology is decades away, however this does not preclude and unintended by product of nanotechnology based processes and engineering.

A: Ethical Issues

Ethical implications of nanotechnology must consider the short and long term implications to the environment, health, safety, and society. [78] According to a research article written by Mynysusiwalla, et al., while there is a great deal of funding toward research of the ethical implications of nanotechnology, not much of this money has been put to use.[79] These researchers argue that while the NNI devoted $16 to 28 million to study the social implications of nanoscience, less than half of these funds were actually spent.[80]

Wei Zhou, in his article Ethics of Nanobiotechnology on the Frontline, argues that much of the lack of research into the ethics of nanotechnology stems from the idea that these ethical issues are hard to identify.[81] Zhou notes that there is a great deal of disagreement among researchers as to how far nanotechnology can go, and that some expect tremendous futuristic potential in nanotechnology, while others see great potential but not with such revolutionary impacts.[82] Many of the questions he raises will be great concerns if such technology becomes available. The potential for genetic discrimination could impact employment, obtaining health insurance, not to mention the pressure members of society might put on each other to become more genetically perfect.

B: Privacy Implications of Nanotechnology

This technology has the potential to revolutionize our concept of individual privacy. We should be mindful of the fact that as nanotechnology makes computing capabilities increasingly smaller and more efficient, collecting, storing, sharing and processing large amounts of information will become easier and cheaper. Nanotechnology has the capability of dramatically improving surveillance devices and producing new weapons, thus leading to an increase in incentives to private companies producing security nanotechnology.

When examining the potential privacy risks that nanotechnology may bring it is important to first determine what type of technical and legal barriers will define the norms for the use of this technology. Historically, Congress has acted in anticipation of potential risk by passing legislation in advance of product introduction into the market. For example, Congress passed the Cable Communications Policy Act in 1984 envisioning the advent of two-way cable. The possibility of the cable operator viewing the habits of subscribers motivated Congress to pass strong opt-in protections for the use of individuals' data. Similarly, Congress acted to prohibit telemarketing to cellular telephones in 1991 with the Telephone Consumer Protection Act, long before the devices became into popular use.[83]

It would be wise for Congress to enact legislation in advance of the adoption of nanotechnology innovations to guard against threats posed to the environment, heath, safety, public welfare, and privacy. Taking action prior to the adoption of nanotechnology innovations may allow for circumvention of problems because this technology may allow for very few or limited opportunities to make post-implementation corrections to processes associated with the technology. For example, if Congress waits to pass privacy-protective legislation until after the technology is prevalent in society, then it may be too difficult to deviate or restrict nano surveillance technology's use. It is important to note that historically privacy-protective legislation has not been designed to limit the use of the new technology, but instead to ensure that "the data collection is fair, transparent, and subject to law," in order to "build consumer confidence, establish a stable business environment, and allow for the benefits of new technology while safeguarding key interests."[84] This rule of law should also apply to new nanotech devices intended for surveillance purposes.

With nanotechnology bringing new types of devices appropriate for surveillance and with the potential to invade individual privacy, legislation should be passed not necessarily to prohibit the ability to engage in surveillance, but to ensure that such surveillance is consistent with the Fourth Amendment. For example, in Kyllo v. United States, investigators, who were suspicious that Kyllo was growing marijuana inside his home, used a new thermal imaging device to scan the home to determine if the amount of heat emanating from it was consistent with the type of lamps often used for marijuana growth.[85] Based on the imaging data, the investigators obtained a warrant to enter and search the house, where they found growing marijuana. Kyllo moved to suppress this imaging evidence, and the case reached the US Supreme Court which ruled that "where the government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant."[86] The premise of Kyllo could be applied to potential future nanotech surveillance devices, in that whatever type of new devices nanotechnology might bring, their uses should not interfere with the Fourth Amendment or other traditional guarantees of privacy. Just because new technologies are developed does not mean that the accepted notions of privacy should be displaced.

Specifically, one of the primary privacy risks related to nanotechnology is the potential to implant microchips into humans. Researchers acknowledge that nanotech microchips could provide a great deal of added benefits, such as dispensing customized amounts of drugs, or alternatively aiding Alzheimer's patients through an implanted "assisted cognition" device to ensure these patients do not get lost.[87] These goals are laudable, but must be accompanied by the consideration that many technologies tend to "creep" into other areas. Should such technology come available it would not only be sold as a way of monitoring or controlling the behavior of Alzheimer's patients, but may be suggested as a means of controlling or monitoring the behavior of those incarcerated or on parole, those receiving public assistance, school aged children, employees, and even wayward spouses.

As indicated, the major privacy related issue-surrounding nanotechnology is the potential for intruding surveillance, and Michael Mehta has addressed this in his article On Nano-panopticism: A Sociological Perspective.[88] In this article, Mehta explores how the development of nanoscale devices for surveillance, tracking and monitoring may create a society that functions as a "panopticion" ('an institutionalized (and physical) form of surveillance').[89] He notes that such nanoscale devices will soon be a reality, as researchers from Hiroshima University and Nippon Hoso Kyokai (NHK) have discovered that silicon nano-crystal film is photoconductive, and once greater control over the size of the crystal grains is achieved, it should be possible to use such films in charge-coupled devices for making highly sensitive, compact video cameras.[90] Further with the increase in storage density and decreasing granularity through the development of carbon nanotubes, terabyte drives may soon be available for PCs and hand-held devices.[91] To protect against this nano-panopticism, Mehta offers a few recommendations. First, he suggests that new regulatory agencies should be established for specifically handling nanotechnology issues, and with the goal of instituting stronger laws for protecting privacy.[92] Second, Mehta suggests that industry needs to consider how ethical codes of conduct can be re-written to include measures that actively reduce the threat of nano-panopticism.[93] Lastly, Mehta suggests that scientists need to be made more aware of how their technologies will impact society and should take courses in risk issue management and social impact assessment.[94]

Another possible recommendation to protecting individual privacy in the face of on-coming nanotech inventions is to educate legislators on the potential intrusions of nanotechnology. Much industrial research and development is kept confidential and may be out of the reach of social scientists and ethicists who are better prepared to evaluate how society will react to new technologies. Decision-makers often focus their attention on the immediate technical challenges of getting the product to the market. It is likely that more privacy protection can be achieved if regulations are instituted before our privacy is invaded. It is difficult to incorporate ethical implications in the decision-making processes unless the decision-makers are thoroughly educated about how to evaluate ethical issues. For publicly supported nanotechnology research programs, such as the NNI, it would be beneficial to ensure that social scientists and humanistic scholars are included in discussions on nanotechnology.[95] This could also set a precedent for private research programs, where it is far more difficult to ensure such social implications are considered. Alternatively, it may be beneficial for regulations to be enacted that would ensure that companies involved in nanotechnology research and development retain ethics advisory boards who are familiar with the privacy related issues and other social implications, and perhaps mandate that such companies complete an information sheet on what potential privacy-related risks their nanotech device or material could impose, and possible ways to alleviate or minimize the intrusion.

In the article Minding the Gap: Science and Ethics of Nanotechnology, Mnyusiwalla et al, suggest possible ways in which the privacy and other social implications of nanotechnology can be better managed. First, they suggest that an appropriate percentage of all funding supporting nanotech research must be devoted to the social implications of the technology.[96] The authors note that in the Human Genome Project, James Watson recommended that 3-5% of the budget be devoted to the study of the ethical, legal, and social implications, and the same type of commitment should be enforced in the area of nanotechnology.[97] Additionally, Mnyusiwalla et al. recommend that strengthening the capacity of research into the ethical and social issues of nanotechnology should begin at all levels, from undergraduate summer students, through graduate students, to post-doctoral fellows, to junior faculty, and senior investigators, to further ensure that such issues are addressed.[98] The authors also emphasize that these issues should not be explored in isolation but that researchers should interact with each other to better understand the various potential risks.[99] Finally, the authors encourage public involvement into the ethical and social implications of nanotechnology through secondary-school discussions and forums to better prepare society for the potential intrusions nanotechnology.[100]

Conclusion

This essay sought to present a basic overview of what nanotechnology is, its potential uses and its potential risks, how the federal government is addressing nanotechnology, as well as what type of societal implications this new technology may bring. With a great deal of funding from the federal government, as well as interest from major corporations and small startup companies both domestically and globally, it is evident that nanotechnology is beginning to penetrate society. Nanotechnology devices and nanoscale materials promise a great deal of societal benefits, but also threaten the privacy of the individual.

Nanotechnology presents the potential for new surveillance devices, but this does not mean that individuals should abandon traditional conceptions of privacy. Instead, we face a challenge in constructing socially beneficial nanotechnology policy. We should explore and engage in a continuing dialog about how nanotechnology can be implemented to benefit individuals without causing damage to privacy, the environment, and social norms.

* This page was derived from a research paper authored by University of Pennsylvania Law Student Eva Gutierrez in Spring 2004.
[1] John Miller, Note, Beyond Biotechnology: FDA Regulation of Nanomedicine, 4 Colum. Sci. & Tech. L. Rev. 1, 2 (2003).
[2] Id. at 2.
[3] What is Nanotechnology?, National Nanotechnology Initiative, available at http://www.nano.gov/html/facts/whatIsNano.html (last visited Mar. 16, 2004).
[4] Emerging technologies: better, faster, cheaper--it's all good. And much of it will arrive sooner than you think, 12/22/03 CFO Mag. for Senior Fin. Executives, 37 WL 9666208, 2003.
[5] National Nanotechnology Initiative, at www.nano.gov (last visited March 17, 2004).
[6] David Brinkerhoff & Dane Hamilton, Industries await dawning of nanotechnology age, USA Today, February 4, 2004, available at http://www.usatoday.com/tech/news/techinnovations/2004-02-04-nanotech_x.htm; www.nano.gov.
[7] Applications and Products, National Nanotechnology Initiative, at http://www.nano.gov/html/facts/appsprod.html (last visited March 17, 2004).
[8] Nanotechnology: Views of Scientists and Engineers, The Royal Society, available at http://www.nanotec.org.uk/workshopOct03Bion.htm#d.
[9]More Products, National Nanotechnology Initiative, at http://www.nano.gov/html/facts/MoreProds.htm (last visited March 17, 2004).
[10] Id.
[11] Tyson Freeman, Nanosphere's system to detect disease draws $10 million financing, Small Times, available at http://www.smalltimes.com/document_display.cfm?document_id=5101.
[12] Id.
[13] Bond, supra note 14.
[14] Id.
[15] Weiss, supra note 12.
[16] Bond, supra note 14.
[17] Id.
[18] Bond, supra note 14.
[19] Id.
[20] Frequently Asked Questions, National Nanotechnology Initiative, at http://www.nano.gov/html/facts/faqs.html (last visited March 17, 2004).
[21] Id.
[22] ETC Group, at http://www.etcgroup.org (last visited March 17, 2004).
[23] Weiss, supra note 12.
[24] Id.
[25] Id.
[26] Id.
[27] Emerging technologies: better, faster, cheaper--it's all good. And much of it will arrive sooner than you think, CFO Mag. for Senior Fin. Executives 19(5), Dec. 22, 2003.
[28] Id.
[29]National Nanotechnology Initiative, at http://www.nano.gov (last visited March 17, 2004).
[30] History, National Nanotechnology Initiative at http://www.nano.gov/html/about/history.html (last visited March 17, 2004).
[31] Nanostructure Science and Technology, A Worldwide Study, at http://www.wtec.org/loyola/nano/.
[32] at http://www.wtec.org/loyola/nano/IWGN.Research.Directions/ (last visited March 17, 2004).
[33] History, National Nanotechnology Initiative at http://www.nano.gov/html/about/history.html (last visited March 17, 2004).
[34] National Nanotechnology Initiative, at http://www.nano.gov (last visited March 17, 2004).
[35] Department of Commerce, Environmental Protection Agency, Intelligence Community, National Institute of Standards and Technology, Department of Defense, National Aeronautics and Space Administration, Department of Energy, National Science Foundation, National Institutes of Health, Nuclear Regulatory Commission, Food and Drug Administration, Department of State, Department of Homeland Security, Department of Treasury, Department of Justice, and Department of Agriculture.
[36] National Nanotechnology Initiative, at http://www.nano.gov (last visited March 17, 2004).
[37] About the NNI, National Nanotechnology Initiative at http://www.nano.gov/html/about/home_about.html (last visited March 17, 2004).
[38] Mihail C. Roco & William Sims Bainbridge, Social Implications of Nanoscience and Nanotechnology (March 2001) at 7, available at http://www.wtec.org/loyola/nano/societalimpact/nanosi.pdf.
[39] About the NNI, National Nanotechnology Initiative at http://www.nano.gov/html/about/home_about.html (last visited March 17, 2004).
[40] NNI Funding, National Nanotechnology Initiative, at http://www.nano.gov/html/about/funding.html (last visited March 17, 2004).
[41] Id.
[42] See NNI Research Centers, National Nanotechnology Initiative, at http://www.nano.gov/html/centers/home_centers.html (last visited March 17, 2004).
[43] Id.
[44] Id.
[45] Miller, supra note 2, at 2.
[46] Donald Marlowe, Regulatory Considerations for Nanotechnology in Public Health, Food and Drug Administration, (October 2, 2003).
[47] Id.
[48] Id. at 16.
[49] Id. at 14.
[50] NNI Centers, Networks and Facilities, National Nanotechnology Initiative, at http://www.nano.gov/html/centers/nnicenters.html (last visited March 17, 2004).
[51] Martin C. Jischke, Trustees OK construction, funding for nanotechnology center, Purdue News, September 21, 2001, at http://news.uns.purdue.edu/UNS/html3month/010921.BOT.things.html.
[52] Id.
[53] Brinkerhoff & Hamilton, supra note 10.
[54] Id; See generally, Nanotechnology Now, at http://nanotech-now.com/vc-firms.htm (last visited March 17, 2004) (listing 62 different nanotechnology firms).
[55] Id.
[56] Sarah Lacy, 'Nanotechnology' hasn't lured large piles of venture capital, San Jose Bus. J.l, June 7, 2002, available at http://www.bizjournals.com/sacramento/stories/2002/06/10/smallb4.html.
[57] Bond, supra note 14.
[58] National Nanotechnology Initiative, at http://www.nano.gov (last visited March 17, 2004).
[59] Id.
[60] Anisa Mnyusiwalla, Abdallah Daar, & Peter Singer, 'Mind the gap: science and ethics in nanotechnology, Nanotechnology 14 (2003) at R10.
[61] International Nanotechnology Programs, Nanotechnology Now, at http://nanotech-now.com/international.htm (March 17, 2004).
[62] Id.
[63] Id.
[64] Toxic Substances Control Act, 15 U.S.C. 2601 et seq. (1976).
[65] 15 USC 2605.
[66] Weiss, supra note 12.
[67] Id.
[68] Id.
[69] Id.
[71] Social Implications, National Nanotechnology Initiative, at http://www.nano.gov/html/facts/society.html (last visited March 17, 2004).
[72] Bond, supra note 14.
[73] Social Implications, National Nanotechnology Initiative, at http://www.nano.gov/html/facts/society.html (last visited March 17, 2004).
[74] NSF Awards New Grants to Study Societal Implications of Nanotechnology, NSF Press Release, August 25, 2003, at http://www.nsf.gov/od/lpa/news/03/pr0389.htm.
[75] Statement for the Record on Nanotechnology, Department of Health and Human Services, National Institutes of Health, Before the Senate Committee on Commerce, Science, and Transportation (May 1, 2003), available at http://www.hhs.gov/asl/testify/t030501_a.html.
[76] Weiss, supra note 12.
[77] Id.
[78] R.E. Smalley, Of Chemistry, Love and Nanobots, Scientific American, Sept. 2001, at 285.
[79] Mnyusiwalla, et al., supra note 74, at R11.
[80] Id.
[81] Wei Zhou, Ethics of Nanobiotechnology at the Frontline, 19 Santa Clara Comp. & High Tech. L. J. 481 (May 2003).
[82] Id. at 486.
[83] Cable Communications Policy Act of 1984, 47 USC § 521, et seq; Telephone Consumer Protection Act of 1991, 47 USC § 227; Marc Rotenberg, Testimony and Statement for the Record for the Hearing of Privacy in the Commercial World. March 21, 2001, available at http://www.epic.org/privacy/testimony_0301.html
[84] Rotenberg, supra note 127.
[85] Kyllo v. United States, 121 S.Ct. 2038 (U.S. 2001).
[86] Kyllo, 121 S.Ct at 2039.
[87] Marylinn Daye, Nanotechnology and privacy -- who says? July 1, 2002, available at http://members.rogers.com/mdaye/nano_index.html.
[88] Michael Mehta, On Nano-Panopticism: A Sociological Perspective, available at http://chem4823.usask.ca/~cassidyr/OnNano-Panopticism-ASociologicalPerspective.htm.
[89] Id.
[90] Id.
[91] Id.
[92] Id.
[93] Id.
[94] Id.
[95] Zhou, supra note 122, at 488.
[96] Mnyusiwalla, et al., supra note 80, at R13.
[97] Id.
[98] Id.
[99] Id.
[100] Id.