Regulating emerging technologies is analogous to shooting a rapidly moving target – almost impossible. Technologies such as Biotechnology, Synthetic Biology and Artificial Intelligence evolve on an exponential curve. They introduce numerous novel complexities, both legal and ethical. In the field of biotechnology, Canada took a utilitarian approach that enabled a coherent and equal application of the law on such an evasive field. But is that enough of a lesson to apply to regulating all emerging technologies?

In a recent Article, Gary E. Marchant & Yvonne A. Stevens expound on different regulating approaches utilized by the European Union (EU), U.S. and Canada with regard to biotechnology. The EU, they explain, utilizes a process-based approach. Accordingly, it applies higher standards of scrutiny to genetically modified foods, than to other methods. However, with the knowledge available at the time of passing the relevant legislation, they only included a certain technique of genetic modification – new techniques were not covered. This approach resulted in great uncertainty as to its application to new technologies. It also wrongly presumes genetically modified foods are more dangerous than foods generated by different methods, thus diminishes any scientific advancements in the field of biotechnology.

Canada, on the other hand, utilized a product-based approach. Their method relies on two criteria. The first, the novelty of the food or plant; the second, the end product. This approach negates discrimination by virtue of the process used to create a certain food or plant. All foods or plants, regardless of the technology used, go through the same process in which only novel foods and plants are scrutinized. Among other virtues, this utilitarian approach bypasses any need to specify technologies, allows greater adaptability to new technologies and avoids debates on ethical considerations stemming therefrom.

Although at first, seemingly product-based, the U.S. has utilized a hybrid approach. By singling out all genetically modified crops as suspicious for pest plants, they, in fact, utilize a more process-based approach. Other crops with the same traits (pest plants), that are grown using different methods, are not required to go through the same scrutiny as the genetically modified crops. This differentiation is not supported by any scientific finding and is purely based on misconceptions and fixations regarding biotechnology.

Biotechnology can be seen as a microcosm for all other emerging technologies. As a lesson learned from the above, it is impossible to create concrete rules for a phenomenon you cannot fully understand, let alone, when it is constantly evolving. Therefore, using an ontological approach will be counterproductive.

Ontological approaches usually deal with the process underlining a certain phenomenon. They scrutinize the method and go by the premise that the end does not justify the means. By analogy to criminal law, Courts scrutinize the criminal procedure utilized in a process of an investigation since “it is better that ten guilty persons escape than that one innocent suffer” (Blackstone’s formulation). However, unlike criminal procedure rules, there are no coherent or even remotely agreeable set of rules for emerging technologies. Moreover, there is no common understanding as to the delineating morality for the use of such technologies. Hence, it is only natural that a different approach would be resorted to – a utilitarian approach.

Utilitarian approaches, as Canada utilized above, are highly suitable for situations in which the process is less clear or does not matter. Given the advantages stemming from technology, it is nothing but desirable to benefit from cheap, less environmentally abusive and cutting edge technologies that produce the same quality product (sometimes even better). However, does the end always justify the means? Are we ready to replicate human beings for use of replacement organs? Are we knowledgeable enough to foresee the implication on the ecosystem stemming from the alteration of a plant’s DNA? And lastly, are we in need for such technologies now?

Before creating concrete rules of any kind, utilitarian or ontological, we should first balance whether we acquired enough knowledge about this technology to understand its implications on our world; whether society is morally ready to use such technology, and whether society is in need for it. Policy makers should strive to create ontologically-based rules that stem from the answers to the above questions. Until that day, the use of utilitarian-based rules, such as Canada’s, should be carefully used in places where at least two of the above three questions are sufficiently answered. In the interim, researchers and developers should be incentivized to create their own regulations and guidelines, be as transparent as possible about their findings, as well as work closely with civil society and other NGOs to better inform the rest of us about their achievements (as expressed here).

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