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by Adam Serwer, from The American Prospect

A few months ago I watched Moon with a friend who works on public relations for the American Civil Liberties Union (ACLU). The science fiction movie, released in 2009, centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his wife on Earth. That is, until he discovers he’s actually one of a series of expendable human clones bred by a mining company for dangerous, repetitive work.

Ultimately, Bell outsmarts the automated systems and escapes on a vessel bound for Earth, where the corporation he worked for gets charged with crimes against humanity. And as the credits rolled, my friend said to me, “I’d like to think that when that guy got to Earth, the ACLU would have taken his case.”

The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. Almost a decade ago, though, the organization started thinking about how to do it.

James Madison once wrote, “No nation could preserve its freedom in the midst of continual warfare.” Yet America is in the midst of a global war with no defined end. Which is why, in the immediate aftermath of September 11, the ACLU began anticipating worst case legal scenarios involving the violation of civil liberties.

In the summer of 2002, it wasn’t just the war on terror that was shaking up the civil liberties community. Scientific advancements in the 1990s had led to the first successfully cloned animal, Dolly the sheep. With these domestic and international developments in mind, Jay Stanley, a policy analyst for the ACLU, decided that the time had come to prepare for threats to liberty that, at the time, existed only in the imagination.

Stanley compiled a report titled “Technology, Liberties, and the Future,” which was never released to the public. In it, he draws on insights from scientists, legal scholars, and political theorists to game out legal responses to everything from cloning to artificial intelligence.

What would happen, Stanley asked, if people could develop genetic “recipes” for cloning? And how “do free speech rights bear up against privacy interests when, for example, such recipes are traded over the Internet?”

Stanley’s secret 2002 paper may be a futuristic document, but its intellectual origins lie in Olmstead v. United States, a 1928 case in which the Supreme Court upheld the conviction of Roy Olmstead, a bootlegger who was convicted by evidence obtained through warrantless wiretaps. A dissent in that case, written by Justice Louis Brandeis, is often cited by civil libertarians for its prescience. “Subtler and more far-reaching means of invading privacy have become available to the government,” Brandeis wrote. “Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

It’s unlikely that Brandeis could have imagined the world of 2010, but being a civil libertarian requires a touch of paranoia—anticipating threats to freedom rather than waiting for them to metastasize. “It’s striking how rapidly things move from being science fiction to being true threats to privacy, from face recognition to body scanners,” Stanley says.

The abstract issues raised in Stanley’s report frequently derive from recent American science fiction: The cult hit Blade Runner, set in a dystopian future in which the Tyrell Corporation manufactures androids that are nearly indistinguishable from humans but are considered property with no rights at all. The Terminator series, featuring a defense contractor that builds artificial intelligence that plunges the world into an apocalyptic war between humans and cyborgs. The Company, the villainous firm in the Alien movies that constantly exposes its workers to danger in order to learn more about the capabilities of the eponymous aliens.

The document convinced the ACLU leadership that these cinematic plots were rooted in science as much as in fiction, and that the organization was frightfully ignorant of potential threats to individual liberty from emerging technologies. “We decided that we needed to have somebody who could help us think through these issues and monitor them and provide us with ties to the scientific community and scientific expertise,” Stanley says. In 2003 the organization hired a science adviser, Tania Simoncelli, to monitor scientific advancements for potential threats and act as a liaison to the scientific community.

“I was rattling off topics that I thought had a litigation angle,” Simoncelli recalls, “and I said of course there’s always the issue of gene patents.”

Chris Hansen, an ACLU staff attorney, balked. “What?” he said. “You’re telling me . . . the U.S. patent office is granting patents on human genes?”

“Chris,” Simoncelli said, “it’s been going on for about 20 years.”

For more than a decade Myriad Genetics held the patent for two genes linked to the mutations that cause breast cancer or ovarian cancer. Hansen and Simoncelli began working on ways to challenge the patent in court. In 2009 the ACLU brought the biggest science-based lawsuit in its history against Myriad.

It’s not permissible to patent laws of nature or products of nature or abstract ideas. According to the 1980 Diamond v. Chakrabarty Supreme Court decision, however, biological organisms can be patented as long as they have been altered enough that they do not occur naturally. So Myriad’s position was simple: By isolating a gene, the company claimed to have created a manipulation that doesn’t occur naturally. The ACLU argued that while the genes are artificially isolated, they are still indistinguishable from naturally occurring genes.

What’s more, Hansen argued, Myriad’s patent was stifling innovation by preventing other firms from doing research on the genes in question. If the court held that it was legal to patent an unaltered gene, the only company able to research or develop any cancer treatments from studying that gene would be Myriad. It could, in effect, lock out other companies and slow innovation to a crawl.

The implications go beyond market competition. If one could patent a gene simply by isolating it, why not a kidney? It’s easy to see how in the long run, such a precedent could lead to the Moon scenario. Even a self-aware clone would merely be a patentable piece of property

Ultimately, U.S. District Court Judge Robert W. Sweet ruled that the isolated DNA was not “markedly different” from naturally occurring DNA, invalidating the patent. The ACLU had successfully prevented private corporations from patenting a part of the human body.

Myriad has since appealed, and if the case reaches the Supreme Court, the corporate-friendly conservative bloc will be difficult to persuade. In case after case, the conservative majority has favored the rights of corporations over those of individual human beings. And in a world where the government can circumvent constitutional restrictions on its power by outsourcing its surveillance infrastructure to the private sector and where private companies can patent parts of the human body, it’s hard to imagine that the fight for individual liberty would get any easier.

Sometimes science fiction isn’t as futuristic as we might think.

Excerpted from The American Prospect (Oct. 2010), a smart, authoritative political journal and a 2010 Utne Independent Press Award nominee for political coverage and general excellence. www.prospect.org