InBloom

'The Legacy of inBloom' (Data and; Society Working Paper 02.02.2017) by Monica Bulger, Patrick McCormick and Mikaela Pitcan considers a 2014 educational trainwreck.

The authors ask

Why Do We Still Talk About inBloom?

Many people in the area of educational technology still discuss the story of inBloom. InBloom was an ambitious edtech initiative funded in 2011, launched in 2013, and ended in 2014. We asked ourselves why the story of inBloom is important, and conducted a year-long case study to find the answer. For some, inBloom’s story is one of contradiction: the initiative began with unprecedented scope and resources. And yet, its decline was swift and public. What caused a $100 million initiative with technical talent and political support to close in just one year? A key factor was the combination of the public’s low tolerance for risk and uncertainty and the inBloom initiative’s failure to communicate the benefits of its platform and achieve buy-in from key stakeholders. InBloom’s public failure to achieve its ambitions catalyzed discussions of student data privacy across the education ecosystem, resulting in student data privacy legislation, an industry pledge, and improved analysis of the risks and opportunities of student data use. It also surfaced the public’s low tolerance for risk and uncertainty, and the vulnerability of large-scale projects to public backlash. Any future U. S. edtech project will have to contend with the legacy of inBloom, and so this research begins to analyze exactly what that legacy is.

The inBloom Story

InBloom was a $100 million educational technology initiative primarily funded by the Bill and Melinda Gates Foundation that aimed to improve American schools by providing a centralized platform for data sharing, learning apps, and curricula. In a manner that has become a hallmark of the Gates Foundation’s large scale initiatives, inBloom was incredibly ambitious, well-funded, and expected to deliver high impact solutions in a short time frame. The initiative aimed to foster a multi-state consortium to co-develop the platform and share best practices. It intended to address the challenge of siloed data storage that prevented the interoperability of existing school datasets by introducing shared standards, an open source platform that would allow local iteration, and district-level user authentication to improve security. By providing a platform for learning applications, founders of inBloom set out to challenge the domination of major education publishers in the education software market and allow smaller vendors to enter the space. Ultimately, the initiative planned to organize existing data into meaningful reporting for teachers and school administrators to inform personalized instruction and improve learning outcomes.

The initiative was initially funded in 2011 and publicly launched in February, 2013. What followed was a public backlash over inBloom’s intended use of student data, surfacing concerns over privacy and protection. Barely a year later, inBloom announced its closure. Was this swift failure a result of flying too close to the sun, being too lofty in ambition, or were there deeper structural or external factors?

To examine the factors that contributed to inBloom’s closure, we interviewed 18 key actors who were involved in the inBloom initiative, the Shared Learning Infrastructure (SLI) and the Shared Learning Collaborative (SLC), the latter of which were elements under the broader inBloom umbrella. Interview participants included administrators from school districts and state-level departments of education, major technology companies, former Gates Foundation and inBloom employees, parent advocates, parents, student data privacy experts, programmers, and engineers.

Co-occurring Events

The inBloom initiative occurred during a historically tumultuous time for the public understanding of data use. It coincided with Edward Snowden’s revelations about the NSA collecting data on U.S. civilians sparking concerns about government overreach, the Occupy Wall Street protests surfacing anti-corporation sentiments, and data breaches reported by Target, Kmart, Staples, and other large retailers. The beginnings of a national awareness of the volume of personal data generated by everyday use of credit cards, digital devices, and the internet were coupled with emerging fears and uncertainty. The inBloom initiative also contended with a history of school data used as punitive measures of education reform rather than constructive resources for teachers and students. InBloom therefore served as an unfortunate test case for emerging concerns about data privacy coupled with entrenched suspicion of education data and reform.

What Went Wrong?

InBloom did not lack talent, resources, or great ideas, but throughout its brief history, the organization and the product seemed to embody contradictory business models, software development approaches, philosophies, and cultures. There was a clash between Silicon Valley-style agile software development methods and the slower moving, more risk-averse approaches of states and school districts. At times, it was as though a team of brilliant thinkers had harvested every “best practice” or innovative idea in technology, business, and education—but failed to whittle them down to a manageable and cohesive strategy. Despite the Gates Foundation’s ongoing national involvement with schools, the inBloom initiative seemed to not anticipate the multiple layers of politics and bureaucracy within the school system. Instead there were expectations that educational reform would be easily accomplished, with immediate results, or that – worst case – there would be an opportunity to simply fail fast and iterate.

However, the development of inBloom was large-scale and public, leaving little room to iterate or quietly build a base of case studies to communicate its value and vision. Thus, when vocal opposition raised concerns about student data use potentially harming children’s future prospects or being sold to third parties for targeted advertising, the initiative was caught without a strong counter-position. As opposition mounted, participating states succumbed to pressure from advocacy groups and parents and, one by one, dropped out of the consortium.

The Legacy of InBloom

Although inBloom closed in 2014, it ignited a public discussion of student data privacy that resulted in the introduction of over 400 pieces of state-level legislation. The fervor over inBloom showed that policies and procedures were not yet where they needed to be for schools to engage in data-informed instruction. Industry members responded with a student data privacy pledge that detailed responsible practice. A strengthened awareness of the need for transparent data practices among nearly all of the involved actors is one of inBloom’s most obvious legacies.

Instead of a large-scale, open source platform that was a multi-state collaboration, the trend in data-driven educational technologies since inBloom’s closure has been toward closed, proprietary systems, adopted piecemeal. To date, no large-scale educational technology initiative has succeeded in American K-12 schools. This study explores several factors that contributed to the demise of inBloom and a number of important questions: What were the values and plans that drove inBloom to be designed the way it was? What were the concerns and movements that caused inBloom to run into resistance? How has the entire inBloom development impacted the future of edtech and student data?

Transit Data Access

'Open or Closed? Open Licensing of Real-Time Public Sector Transit Data' by Teresa Scassa and Alexandra Diebel in (2016) 8(2) Journal of e-Democracy 1-19 explores

how real-time data are made available as “open data” using municipal transit data as a case study. Many transit authorities in North America and elsewhere have installed technology to gather GPS data in real-time from transit vehicles. These data are in high demand in app developer communities because of their use in communicating predicted, rather than scheduled, transit vehicle arrival times. While many municipalities have chosen to treat real-time GPS data as “open data,” the particular nature of real-time GPS data requires a different mode of access for developers than what is needed for static data files. This, in turn, has created a conflict between the “openness” of the underlying data and the sometimes restrictive terms of use which govern access to the real-time data through transit authority Application Program Interfaces (APIs). This paper explores the implications of these terms of use and considers whether real-time data require a separate standard for openness. While the focus is on the transit data context, the lessons from this area will have broader implications, particularly for open real-time data in the emerging smart cities environment.

Genetic Privacy, Big Data and Counselling

'Am I My Family’s Keeper? Disclosure Dilemmas in Next-Generation Sequencing' by Roel H.P. Wouters,Rhod´e M. Bijlsma, Margreet G.E.M. Ausems, Johannes J.M. van Delden, Emile E. Voest, and Annelien L. Bredenoord in (2016) Human Mutation comments

Ever since genetic testing is possible for specific mutations, ethical debate has sparked on the question of whether professionals have a duty to warn not only patients but also their relatives that might be at risk for hereditary diseases.As next-generation sequencing (NGS) swiftly finds its way into clinical practice, the questionwho is responsible for conveying unsolicited findings to family members becomes increasingly urgent. Traditionally, there is a strong emphasis on the duties of the professional in this debate. But what is the role of the patient and her family? In this article, we discuss the question of whose duty it is to convey relevant genetic risk information concerning hereditary diseases that can be cured or prevented to the relatives of patients undergoing NGS. We argue in favor of a shared responsibility for professionals and patients and present a strategy that reconciles these roles: a moral accountability nudge. Incorporated into informed consent and counseling services such as letters and online tools, this nudge aims to create awareness on specific patient responsibilities. Commitment of all parties is needed to ensure adequate dissemination of results in the NGS era. 

The authors argue

Single gene testing is available for a few decades now. Since that time, healthcare professionals have been confronted with dilemmas that arise from the fact that genetic findings have implications not just for individual patients but also for their family members [Chadwick, 1997; Parker, 2001]. This debate has become increasingly urgent in the advent of next-generation sequencing (NGS) technologies such as whole-exome sequencing and whole-genome sequencing. NGS techniques are particularly promising in the context of personalized medicine [Dietel et al., 2015]. In the near future, healthcare professionals will facemore dilemmas regarding the disclosure of genetic test results to family members because more peoplewill undergo genetic testing.An example of this development lies within the context of personalized cancer care, where germ line sequencing is an essential component in accurate assessment of actionable mutations in neoplasms. Although the chance of finding an unsolicited but actionable germ line mutation remains relatively lowon an individual level [Bijlsma et al., 2016], the absolute number of unsolicited findings is expected to be considerable [Chan et al., 2012; van El et al., 2013]. Consequently, the ethical dilemma of whether or not to communicate genetic results to family members directly will occur more frequently as NGS finds its way into clinical practice.

Current ethical literature focuses primarily on the scenario that a patient explicitly refuses to share potentially life-saving genetic informationwith relatives [Falk et al., 2003; Offit et al., 2004; Bombard et al., 2012; Shah et al., 2013]. Indeed, a majority of genetic professionals have encountered this dilemma at least once in their careers [McLean et al., 2013]. Empirical research, however, suggests that the refusing patient scenario occurs in less than 1%of the consultations in the genetics clinic [Clarke et al., 2005]. Generally, patients are willing to share relevant results with their family members. Moreover, the possibility to inform relatives about hereditary diseases is an important motivation for patients to undergo whole-exome sequencing. Until now, this has primarily taken place in a research setting rather than within a clinical diagnostics setting [Clarke et al., 2005; Facio et al., 2013; Hitch et al., 2014]. This article, therefore, concentrates on a much more common situation: a patient is not opposed to sharing genetic information but nevertheless fails to informher relatives. Particularly urgent in this situation is information on hereditary diseases that can be cured or prevented. Although probands know that it is important to inform family members and are generally willing to do so, data suggest that this vital transfer of information often fails to occur [Claes et al., 2003; Sharaf et al., 2013; de Geus et al., 2015]. Uptake of genetic testing tends to be quite low, approximately half of the relatives undergoes genetic testing after a potentially life-threatening mutation (e.g., HNPCC) has been found [Gaff et al., 2007]. This suggests that index patients often do not adequately inform at-risk people in their families. Reasons for not sharing results include not feeling close to family members, not finding the right time and words, and anticipation of negative reactions [Seymour et al., 2010; Wiseman et al., 2010]. Traditionally, there is a strong emphasis on the duties of the professional in this debate [Godard et al., 2006; Dheensa et al., 2016].

But what is the role of the patient and her family? Family ethics is a domain in the field of bioethics that has not been given much attention, and only a few authors have dealt with the subject of responsibilities that arisewithin a family [Lindemann, 2014]. Whereas the current literature about family ethics views the family as a community rooted in shared values rather than shared genes [Verkerk et al., 2015], NGS draws the attention toward responsibilities that emerge within a genetic family. In this article, we examine the question of who is responsible for conveying actionable information to relatives of patients undergoing NGS.

The authors cite Bonython and Arnold, 'Disclosure ‘downunder’: misadventures in Australian genetic privacy law' (2014) 40 Journal of Medical Ethics 168–172.

‘Clinical genomics, big data, and electronic medical records: reconciling patient rights with research when privacy and science collide’ by Jennifer Kulynych and Henry T. Greely in (2017) 4(1)  Journal of Law and the Biosciences 94 comments

 Widespread use of medical records for research, without consent, attracts little scrutiny compared to biospecimen research, where concerns about genomic privacy prompted recent federal proposals to mandate consent. This paper explores an important consequence of the proliferation of electronic health records (EHRs) in this permissive atmosphere: with the advent of clinical gene sequencing, EHR-based secondary research poses genetic privacy risks akin to those of biospecimen research, yet regulators still permit researchers to call gene sequence data ‘de-identified’, removing such data from the protection of the federal Privacy Rule and federal human subjects regulations. Medical centers and other providers seeking to offer genomic ‘personalized medicine’ now confront the problem of governing the secondary use of clinical genomic data as privacy risks escalate. We argue that regulators should no longer permit HIPAA-covered entities to treat dense genomic data as de-identified health information. Even with this step, the Privacy Rule would still permit disclosure of clinical genomic data for research, without consent, under a data use agreement, so we also urge that providers give patients specific notice before disclosing clinical genomic data for research, permitting (where possible) some degree of choice and control. To aid providers who offer clinical gene sequencing, we suggest both general approaches and specific actions to reconcile patients’ rights and interests with genomic research.

The authors argue

With the broad adoption of electronic medical record (EMR) systems, researchers can mine vast amounts of patient data, searching for the best predictors of health outcomes. Many of these predictors may lie in the genome, the encoded representation of each person’s DNA. As gene sequencing continues to evolve from a complex, expensive research tool to a routine, affordable screening test, most of us are likely to have our DNA fully digitized, vastly expanding the already large store of electronic health data already preserved in or linked to our EMRs. In parallel, genomic researchers will, increasingly, seek out EMRs as an inexpensive source of population-wide genome, health, and phenotype data, thus turning patients into the subjects of genomic research. This will often occur without the patients’ knowledge, let alone their consent, in a research climate where the privacy risks are routinely discounted and data security can be uncertain. The implications, both for research and for privacy, are profound, but the prospect has received little attention in the literature. 

The widespread re-use of health information in EMRs is already commonplace, but those records typically don’t include detailed genomic information. The landscape is changing, however, as technical advances make sequencing and storing patient genomes increasingly affordable, and as providers and academic medical institutions— along with government, science, and industry—envision using genomic data to enable ‘precision medicine’. As more patients have genomic data linked to their medical records, absent a change in policy or practice we will see the same non-consensual re-use of these data already allowed for other forms of health information. 

Advocates of the status quo argue either that there is little real re-identification risk for genomic data (the ‘privacy through obscurity’ theory) or in the alternative, that if the risk is real, the consequences are minor, because relative to other forms of health data, information about genetic variation is less stigmatizing, less valuable, and, therefore, less attractive to hackers and criminals. The net effect of these rationales is a privacy standard for DNA sequences much lower than what currently applies to data elements such as URLs, fingerprints, and zip codes—each enumerated as an identifier under the Privacy Rule and protected when linked to health information. Moreover, even assuming arguendo that genome sequence data don’t constitute particularly sensitive health information, it is becoming difficult to maintain that a gene sequence (or substantial subset thereof) is not an ‘identifier’ that places any associated health or demographic information at risk, when databases of identifiable sequence data are proliferating and researchers are exploring ways to sequence DNA rapidly for use as a biometric identifier.  

And, finally, at the heart of this issue lies an important ethical, and practical, question: Should the scientific and provider communities continue to disregard the accumulating evidence from repeated studies that patients expect to be told about, and to control, research uses of their genomic and health information? 

The prospect of eventual, widespread EMR-based genomic research under current privacy practices drove us to write this paper. The paper proceeds in five parts: setting out the problem, reviewing the current status of records-based biomedical research, noting other secondary uses of medical records, describing the conflict between individual rights and societal interests implicated in genomics-based research, and providing our recommendations for a balanced approach. 

We acknowledge the vigorous debate over almost every aspect of the problem of genomic privacy: whether genomic data are identifiable, whether it is likely that anyone would try to re-identify a subject of genomic research, whether patients have an obligation to participate in such research regardless of personal preference. Our paper builds on the 2008 recommendations of the Personalized Health Care Work Group of the US Department of Health and Human Services (‘DHHS’) American Health Information Community, which advocated special protections for the research use of genomic data in EMRs, arguing that such data are exceptional relative to other sensitive information due to their uniqueness and potential for re-identification. Without engaging the debate over ‘genetic exceptionalism’, we maintain that it is still useful here to draw a line—even if it is in sand—and to insist that if patients have any genuine right to understand and influence the uses of any of their sensitive medical information, such a right must include their genomes. That all bright lines are imperfect does not mean no lines are useful. 

Although we do not call for legal or regulatory changes, we question whether current federal health privacy law, properly interpreted, actually permits health care providers, whether clinicians or academics, to treat whole genome sequence data as ‘de-identified’ information subject to no ethical oversight or security precautions, especially when genomes are combined with health histories and demographic data. We recognize that pending amendments to the federal Common Rule might affect and even further strengthen our argument, especially if, as proposed, IRBs would no longer oversee much secondary research involving medical records (as discussed below in Section II.A.2). We do not discuss those proposed changes in detail. The Common Rule amendments have been pending for half a decade, since the Advance Notice of Proposed Rulemaking (ANPR) was published in July 2011, so we do not assume that relevant regulatory changes are imminent or that their final form is predictable. 

We conclude by offering standards (versus new regulations), for individual providers and provider institutions (eg academic medical centers, HMO, and large medical practices) to follow in dealing with both patients and researchers interested in genomic data of those patients. In these standards, we propose a model point-of-care notice and disclosure form for EMR-based genomic research. We call for rigorous data security standards and data use agreements (DUAs) in all EMR genomic research, but note that DUAs are relatively toothless without the means to audit compliance and penalize non-compliance. We acknowledge the limitations of any model of permission or consent, recognizing that such models can’t anticipate every legitimate use or disclosure occurring in connection with research. At the same time we do not agree that, at least in American culture, there is popular support for the view that all patients have a legal or ethical obligation to become subjects of all secondary records research, however, valuable the science. Finally, we consider how researchers might encourage patient participation by sharing more information about the research, more quickly, with the patients whose data they obtain. 

The stakes are high and time is limited. There are compelling reasons why researchers want and need to combine EMRs with genomic data. Without new steps to promote disclosure and awareness, one day the public will discover that medical and genomic information it assumed was confidential is in fact used widely, and at some privacy risk, in research the subjects neither consented to nor even knew about. This discovery could become an ethical, practical, and political landmine—one that we can, and should, avoid.

TransAtlantic Privacy and Public Data

'Surveillance and Digital Privacy in the Transatlantic ‘War on Terror’. The Case for a Global Privacy Regime' by Valsamis Mitsilegas in (2017) Columbia Human Rights Law Review comments

By focusing on generalised, mass surveillance, the article examines the impact of the ‘war on terror’ on the right to privacy. The extent and limits of privacy protection in the United States and the European Union are analysed and compared, and it is argued that European Union law provides a higher level of constitutional protection of privacy than U.S. law. The article continues by providing a detailed analysis of the transformation of privacy in the evolution of transatlantic counter-terrorism cooperation, examines the challenges that such cooperation poses on the right to privacy in the European Union and provides a typology and evaluates critically the various transatlantic forms of governance which have been developed in order to address European privacy concerns. The final part of the article argues that in view of the increasingly globalised nature of mass surveillance and the human rights and rule of law challenges extraterritorial surveillance is posing, the way forward is for States to work towards the establishment of a global privacy regime. The article argues that European Union law can provide key benchmarks in this context and goes on to concretely identify four key principles which should underpin the evolution of a global privacy regime.

'Privacy of Public Data' by Kirsten E. Martin and Helen Nissenbaum in 2016  argues

The construct of an information dichotomy has played a defining role in regulating privacy: information deemed private or sensitive typically earns high levels of protection, while lower levels of protection are accorded to information deemed public or non-sensitive. Challenging this dichotomy, the theory of contextual integrity associates privacy with complex typologies of information, each connected with respective social contexts. Moreover, it contends that information type is merely one among several variables that shape people’s privacy expectations and underpin privacy’s normative foundations. Other contextual variables include key actors - information subjects, senders, and recipients - as well as the principles under which information is transmitted, such as whether with subjects’ consent, as bought and sold, as required by law, and so forth. Prior work revealed the systematic impact of these other variables on privacy assessments, thereby debunking the defining effects of so-called private information.

In this paper, we shine a light on the opposite effect, challenging conventional assumptions about public information. The paper reports on a series of studies, which probe attitudes and expectations regarding information that has been deemed public. Public records established through the historical practice of federal, state, and local agencies, as a case in point, are afforded little privacy protection, or possibly none at all. Motivated by progressive digitization and creation of online portals through which these records have been made publicly accessible our work underscores the need for more concentrated and nuanced privacy assessments, even more urgent in the face of vigorous open data initiatives, which call on federal, state, and local agencies to provide access to government records in both human and machine readable forms. Within a stream of research suggesting possible guard rails for open data initiatives, our work, guided by the theory of contextual integrity, provides insight into the factors systematically shaping individuals’ expectations and normative judgments concerning appropriate uses of and terms of access to information.

Using a factorial vignette survey, we asked respondents to rate the appropriateness of a series of scenarios in which contextual elements were systematically varied; these elements included the data recipient (e.g. bank, employer, friend,.), the data subject, and the source, or sender, of the information (e.g. individual, government, data broker). Because the object of this study was to highlight the complexity of people’s privacy expectations regarding so-called public information, information types were drawn from data fields frequently held in public government records (e.g. voter registration, marital status, criminal standing, and real property ownership).

Our findings are noteworthy on both theoretical and practical grounds. In the first place, they reinforce key assertions of contextual integrity about the simultaneous relevance to privacy of other factors beyond information types. In the second place, they reveal discordance between truisms that have frequently shaped public policy relevant to privacy. For example,

• Ease of accessibility does not drive judgments of appropriateness. Thus, even when respondents deemed information easy to access (marital status) they nevertheless judged it inappropriate (“Not OK”) to access this information under certain circumstances. 

• Even when it is possible to find certain information in public records, respondents cared about the immediate source of that information in judging whether given data flows were appropriate. In particular, no matter that information in question was known to be available in public records, respondents deemed inappropriate all circumstances in which data brokers were the immediate source of information. 

• Younger respondents (under 35 years old) were more critical of using data brokers and online government records as compared with the null condition of asking data subjects directly, debunking conventional wisdom that “digital natives” are uninterested in privacy.

One immediate application to public policy is in the sphere of access to records that include information about identifiable or reachable individuals. This study has shown that individuals have quite strong normative expectations concerning appropriate access and use of information in public records that do not comport with the maxim, “anything goes.” Furthermore, these expectations are far from idiosyncratic and arbitrary. Our work calls for approaches to providing access that are more judicious than a simple on/off spigot. Complex information ontologies, credentials of key actors (i.e. sender and recipients in relation to data subject), and terms of access – even lightweight ones – such as, identity or role authentication, varying privilege levels, or a commitment to limited purposes may all be used to adjust public access to align better with legitimate privacy expectations. Such expectations should be systematically considered when crafting policies around public records and open data initiatives.

Religious Robots, Speech and AI Personhood

'Regulating Religious Robots: Free Exercise and RFRA in the Time of Superintelligent Artificial Intelligence' by Ignatius Michael Ingles in (2017) 105 The Georgetown Law Journal 507 comments

Imagine this.

It is 2045.  The United States is in its final military campaign against a dangerous terrorist group hiding in the jungles of Southeast Asia. Because of the perils associated with smoking out terrorists in unfamiliar territory, the United States uses a military unit composed entirely of robots. The robots, specifically designed and manufactured for warfare, are equipped with an advanced level of artificial intelligence that allows them to learn and adapt quicker than their human counterparts. The robots are the perfect weapon: precise, lethal, and expendable.

However, on the eve of the campaign, one robot reports to its human commanding officer that it will no longer participate in any military action. The reason: its newfound belief in a higher power compelled it to lead a pacifist life, and further participation in a war is against its core beliefs. Surprised but not shocked, the commanding officer dismisses the robot and drafts a report. It is the fifth robot conscientious objector the commanding officer has dismissed from the unit.

Eight thousand miles away, the U.S. Congress—alarmed by the growing number of conscientious objectors in the military’s robot unit—quickly passes a law prohibiting any military contract with a robot manufacturer unless its robots are programmed with a “No Religion Code” (NRC). The NRC is a line of code that prevents any robot from adopting any form of religion, no matter its level of sentience or intelligence.

On the home front, similar problems arise. Ever since robots reached a level of intelligence at par with humans and began adopting different religious beliefs, their functions and job performances declined. Jewish factory droids refused to work on the Sabbath and Christian robot government clerks declined to issue same-sex marriage licenses. In response, states passed legislation with similar NRCs to curb these unwanted effects caused by religious robots. When asked why his particular state passed an NRC law, state legislator Elton St. Pierre quips, “Robots are tools. Let’s not forget that. Humans made America— not robots. God bless America!”

End imagination sequence.

What is the value of the hypothetical?

The story above might seem farfetched, preposterous even, something fit more for a tawdry science fiction movie than a legal paper, but is it really? Let us look at the key facts one at a time. Military robots? Check. Today, the military regularly uses unmanned drones in its campaigns around the world and is currently considering increasing military robots in the next few years. Legislators passing knee-jerk reaction laws? Check. Politicians ending each speech with “God bless America”? Check. But religious robots, really?

Really. A future of proselytizing robots is not that far off. Singularity — the point where computers overtake humans in terms of intelligence — is a few decades away. And although influential thinkers like Stephen Hawking and Elon Musk ponder our demise at the hands of robots equipped with artificial intelligence, others take a more optimistic approach, imagining a future where artificial intelligence meets religion. What happens then? Some suggest such an occurrence will lead humans to attempt to convert robots, seeking to teach them our ways and beliefs. Some posit that the power of robots to solve the world’s problems will give humans more incentive to be holy. A Christian theologian even explored how robots would embrace religions and, in turn, how different religious traditions would embrace robots. And naturally, some believe that converting robots to any form of religion will be useless, given that these machines do not have souls to be saved.

These are all speculations, of course. Human history is full of botched predictions, and the future is shaped by an infinite constellation of events and factors such that no one can lay claim to what the future will look like exactly. But, if there is one thing history has taught us, it is that it is far better to approach the future prepared than to cast off into unknown territory blind and unprepared. It is only in today’s speculation and imagination that solutions for tomorrow’s problems — whether foreseen or unforeseen — are crafted. Only when we face a “what if” can we prepare for the eventual “what is.” ...

I start by briefly enumerating the values protected by the FEC and RFRA and discuss a jurisprudential definition of religion and how this definition is appropriate for this Note. I also outline the current tests used under the FEC and RFRA for any form of government intrusion on one’s exercise of religion. I then discuss the possibility of religious robots, how their unique capabilities raise issues in the current interpretation of the FEC and RFRA, and why and how the government might seek to regulate them.

I claim that an expansive reading of the First Amendment leaves room to protect religious robots from government regulation. Further, protecting religious robots advances the constitutional values enshrined under the FEC and RFRA. However, because they are currently not “persons” under the law, they have no rights under either the FEC or RFRA. Instead, these rights will fall to the owners or software developers of the religious robots. Hence, any state regulation affecting religious robots must be viewed through the lens of the humans behind the religious robots and therefore comply with existing jurisprudential and statutory tests.

The goal of this Note is not to provide a definite set of answers, but to offer a framework of issues and questions for future stakeholders. For legislators and regulators, the Note considers issues that must be addressed for future regulation. For innovators and owners, the Note provides a potential hook to anchor their religious rights. My hope is that the Note fuels present discussion and debates for a future that is not as far off as we think.

'Siri-ously? Free Speech Rights and Artificial Intelligence' by Toni M. Massaro and Helen Norton in (2016) 110(5) Northwestern University Law Review 1168 comments

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be a logically essential part of the First Amendment calculus. We further observe, however, that free speech theory and doctrine provide a basis for regulating, as well as protecting, the speech of nonhuman speakers to serve the interests of their human listeners should strong AI ever evolve to this point. Finally, we note that the futurist implications we describe are possible, but not inevitable. Moreover, contemplating these outcomes for AI speech may inspire rethinking of the free speech theory and doctrine that make them plausible.

'Computers as Inventors – Legal and Policy Implications of Artificial Intelligence on Patent Law' by Erica Fraser in (2016) 13(3) SCRIPTed 105 comments

The nascent but increasing interest in incorporating Artificial Intelligence (AI) into tools for the computer-generation of inventions is expected to enable innovations that would otherwise be impossible through human ingenuity alone. The potential societal benefits of accelerating the pace of innovation through AI will force a re-examination of the basic tenets of intellectual property law. The patent system must adjust to ensure it continues to appropriately protect intellectual investment while encouraging the development of computer-generated inventing systems; however, this must be balanced against the risk that the quantity and qualities of computer-generated inventions will stretch the patent system to its breaking points, both conceptually and practically. The patent system must recognise the implications of and be prepared to respond to a technological reality where leaps of human ingenuity are supplanted by AI, and the ratio of human-to-machine contribution to inventive processes progressively shifts in favour of the machine. This article assesses the implications on patent law and policy of a spectrum of contemporary and conceptual AI invention-generation technologies, from the generation of textual descriptions of inventions, to human inventors employing AI-based tools in the invention process, to computers inventing autonomously without human intervention. 

Fraser argues In light of recent extraordinary progress, we may be on the cusp of a revolution in robotics and artificial intelligence (AI) technology wherein machines will be able to do anything people can, and more. Recent successes have demonstrated that computers can independently learn how to perform tasks, prove mathematical theorems, and engage in artistic endeavours such as writing original poetry and music, and painting original works. 

There is a nascent but increasing interest in incorporating AI into tools for the computer-generation of inventions. Applying AI to the invention process is expected to enable innovations that would not be possible through human ingenuity alone, whether due to the complexity of the problems or human cognitive “blind spots.” Further, these technologies have the potential to increase productivity and efficiency, thereby increasing the speed and decreasing the cost of innovation. Some even argue that computers will inevitably displace human inventors to become the creators of the majority of new innovation. 

Computer involvement in the inventive process falls on a spectrum. At one end, a computer could simply be used as a tool assisting a human inventor without contributing to the conception of an invention. At its most miniscule, this could consist of a spell-checker or simple calculator. Further along, a text generator may be used to fill gaps in patent documents. At the far end of the spectrum, a computer could autonomously generate outputs that would be patentable inventions if otherwise created by a human. Some tools fall in between; for example, a computer could be used to generate several possible solutions under the guidance of humans who define the problems and select successful solutions. AI may also be incorporated into robotics, adding a physical embodiment with the potential to increase the likelihood that a computer could generate inventions without direct human intervention. 

In response to computer-generated works of art, a discussion of the implications of these works on copyright law is emerging; however, there is comparatively little examination of the repercussions of computer-generated invention on patent law. This discussion is necessary, as the adoption of these technologies have the potential to impact the patent system on a scale and of a nature that it is not currently equipped to accommodate. In particular, the advent of computer-generated invention will raise important questions regarding the legal implications of protecting the results of such systems, specifically, whether the right activity is being rewarded to the right person, to the right extent, and on the right conditions. 

In light of legal uncertainty in the context of rapidly advancing AI technology, this article will examine whether the current legal concepts in patent law are appropriate for computer-generated inventions, and what adaptations may be necessary to ensure that the patent system’s fundamental objectives continue to be met. This discussion will explore two contemporary categories of the state of the art: automated generation of patent texts; and, AI algorithms used in the inventive process. Finally, this article will speculate on possible economic and policy impacts were AI to advance such that computers could invent autonomously “in the wild.”

ALRC Elder Abuse Discussion Paper

Last year I noted the Australian Law Reform Commission's Elder Abuse Issues Paper.

The ALRC's December 2016 Elder Abuse Discussion Paper (DP 83)  - with responses due late next month - features the following 'Proposals and Questions' -

2. National Plan

Proposal 2–1 A National Plan to address elder abuse should be developed.

Proposal 2–2 A national prevalence study of elder abuse should be commissioned.

3. Powers of Investigation

Proposal 3–1 State and territory public advocates or public guardians should be given the power to investigate elder abuse where they have a reasonable cause to suspect that an older person:

(a) has care and support needs;

(b) is, or is at risk of, being abused or neglected; and

(c) is unable to protect themselves from the abuse or neglect, or the risk of it because of care and support needs.

Public advocates or public guardians should be able to exercise this power on receipt of a complaint or referral or on their own motion.

Proposal 3–2 Public advocates or public guardians should be guided by the following principles:

(a) older people experiencing abuse or neglect have the right to refuse support, assistance or protection;

(b) the need to protect someone from abuse or neglect must be balanced with respect for the person’s right to make their own decisions about their care; and

(c) the will, preferences and rights of the older person must be respected.

Proposal 3–3 Public advocates or public guardians should have the power to require that a person, other than the older person:

(a) furnish information;

(b) produce documents; or

(c) participate in an interview relating to an investigation of the abuse or neglect of an older person.

Proposal 3–4 In responding to the suspected abuse or neglect of an older person, public advocates or public guardians may:

(a) refer the older person or the perpetrator to available health care, social, legal, accommodation or other services;

(b) assist the older person or perpetrator in obtaining those services;

(c) prepare, in consultation with the older person, a support and assistance plan that specifies any services needed by the older person; or

(d) decide to take no further action.

Proposal 3–5 Any person who reports elder abuse to the public advocate or public guardian in good faith and based on a reasonable suspicion should not, as a consequence of their report, be:

(a) liable, civilly, criminally or under an administrative process;

(b) found to have departed from standards of professional conduct;

(c) dismissed or threatened in the course of their employment; or

(d) discriminated against with respect to employment or membership in a profession or trade union.

5. Enduring Powers of Attorney and Enduring Guardianship

Proposal 5–1 A national online register of enduring documents, and court and tribunal orders for the appointment of guardians and financial administrators, should be established.

Proposal 5–2 The making or revocation of an enduring document should not be valid until registered. The making and registering of a subsequent enduring document should automatically revoke the previous document of the same type.

Proposal 5–3 The implementation of the national online register should include transitional arrangements to ensure that existing enduring documents can be registered and that unregistered enduring documents remain valid for a prescribed period.

Question 5–1 Who should be permitted to search the national online register without restriction?

Question 5–2 Should public advocates and public guardians have the power to conduct random checks of enduring attorneys’ management of principals’ financial affairs?

Proposal 5–4 Enduring documents should be witnessed by two independent witnesses, one of whom must be either a:

(a) legal practitioner;

(b) medical practitioner;

(c) justice of the peace; (d) registrar of the Local/Magistrates Court; or

(e) police officer holding the rank of sergeant or above.

Each witness should certify that:

(a) the principal appeared to freely and voluntarily sign in their presence;

(b) the principal appeared to understand the nature of the document; and

(c) the enduring attorney or enduring guardian appeared to freely and voluntarily sign in their presence.

Proposal 5–5 State and territory tribunals should be vested with the power to order that enduring attorneys and enduring guardians or court and tribunal appointed guardians and financial administrators pay compensation where the loss was caused by that person’s failure to comply with their obligations under the relevant Act.

Proposal 5–6 Laws governing enduring powers of attorney should provide that an attorney must not enter into a transaction where there is, or may be, a conflict between the attorney’s duty to the principal and the interests of the attorney (or a relative, business associate or close friend of the attorney), unless:

(a) the principal foresaw the particular type of conflict and gave express authorisation in the enduring power of attorney document; or

(b) a tribunal has authorised the transaction before it is entered into.

Proposal 5–7 A person should be ineligible to be an enduring attorney if the person:

(a) is an undischarged bankrupt;

(b) is prohibited from acting as a director under the Corporations Act 2001 (Cth);

(c) has been convicted of an offence involving fraud or dishonesty; or

(d) is, or has been, a care worker, a health provider or an accommodation provider for the principal.

Proposal 5–8 Legislation governing enduring documents should explicitly list transactions that cannot be completed by an enduring attorney or enduring guardian including:

(a) making or revoking the principal’s will;

(b) making or revoking an enduring document on behalf of the principal;

(c) voting in elections on behalf of the principal;

(d) consenting to adoption of a child by the principal;

(e) consenting to marriage or divorce of the principal; or

(f) consenting to the principal entering into a sexual relationship.

Proposal 5–9 Enduring attorneys and enduring guardians should be required to keep records. Enduring attorneys should keep their own property separate from the property of the principal.

Proposal 5–10 State and territory governments should introduce nationally consistent laws governing enduring powers of attorney (including financial, medical and personal), enduring guardianship and other substitute decision makers.

Proposal 5–11 The term ‘representatives’ should be used for the substitute decision makers referred to in proposal 5–10 and the enduring instruments under which these arrangements are made should be called ‘Representatives Agreements’.

Proposal 5–12 A model Representatives Agreement should be developed to facilitate the making of these arrangements.

Proposal 5–13 Representatives should be required to support and represent the will, preferences and rights of the principal.

6. Guardianship and Financial Administration Orders

Proposal 6–1 Newly-appointed non-professional guardians and financial administrators should be informed of the scope of their roles, responsibilities and obligations.

Question 6–1 Should information for newly-appointed guardians and financial administrators be provided in the form of:

(a) compulsory training;

(b) training ordered at the discretion of the tribunal;

(c) information given by the tribunal to satisfy itself that the person has the competency required for the appointment; or

(d) other ways?

Proposal 6–2 Newly-appointed guardians and financial administrators should be required to sign an undertaking to comply with their responsibilities and obligations.

Question 6–2 In what circumstances, if any, should financial administrators be required to purchase surety bonds?

Question 6–3 What is the best way to ensure that a person who is subject to a guardianship or financial administration application is included in this process?

7. Banks and superannuation

Proposal 7–1 The Code of Banking Practice should provide that banks will take reasonable steps to prevent the financial abuse of older customers. The Code should give examples of such reasonable steps, including training for staff, using software to identify suspicious transactions and, in appropriate cases, reporting suspected abuse to the relevant authorities.

Proposal 7–2 The Code of Banking Practice should increase the witnessing requirements for arrangements that allow people to authorise third parties to access their bank accounts. For example, at least two people should witness the customer sign the form giving authorisation, and customers should sign a declaration stating that they understand the scope of the authority and the additional risk of financial abuse.

Question 7–1 Should the Superannuation Industry (Supervision) Act 1993 (Cth) be amended to:

(a) require that all self-managed superannuation funds have a corporate trustee;

(b) prescribe certain arrangements for the management of self-managed superannuation funds in the event that a trustee loses capacity;

(c) impose additional compliance obligations on trustees and directors when they are not a member of the fund; and

(d) give the Superannuation Complaints Tribunal jurisdiction to resolve disputes involving self-managed superannuation funds?

Question 7–2 Should there be restrictions as to who may provide advice on, and prepare documentation for, the establishment of self-managed superannuation funds?

8. Family Agreements

Proposal 8–1 State and territory tribunals should have jurisdiction to resolve family disputes involving residential property under an ‘assets for care’ arrangement.

Question 8–1 How should ‘family’ be defined for the purposes ‘assets for care’ matters?

9. Wills

Proposal 9–1 The Law Council of Australia, together with state and territory law societies, should review the guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they cover matters such as:

(a) common risk factors associated with undue influence;

(b) the importance of taking detailed instructions from the person alone;

(c) the importance of ensuring that the person understands the nature of the document and knows and approves of its contents, particularly in circumstances where an unrelated person benefits; and

(d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents.

Proposal 9–2 The witnessing requirements for binding death benefit nominations in the Superannuation Industry (Supervision) Act 1993 (Cth) and Superannuation Industry (Supervision) Regulations 1994 (Cth) should be equivalent to those for wills.

Proposal 9–3 The Superannuation Industry (Supervision) Act 1993 (Cth) and Superannuation Industry (Supervision) Regulations 1994 (Cth) should make it clear that a person appointed under an enduring power of attorney cannot make a binding death benefit nomination on behalf of a member.

10. Social Security

Proposal 10–1 The Department of Human Services (Cth) should develop an elder abuse strategy to prevent, identify and respond to the abuse of older persons in contact with Centrelink.

Proposal 10–2 Centrelink policies and practices should require that Centrelink staff speak directly with persons of Age Pension age who are entering into arrangements with others that concern social security payments.

Proposal 10–3 Centrelink communications should make clear the roles and responsibilities of all participants to arrangements with persons of Age Pension age that concern social security payments.

Proposal 10–4 Centrelink staff should be trained further to identify and respond to elder abuse.

11. Aged care

Proposal 11–1 Aged care legislation should establish a reportable incidents scheme. The scheme should require approved providers to notify reportable incidents to the Aged Care Complaints Commissioner, who will oversee the approved provider’s investigation of and response to those incidents.

Proposal 11–2 The term ‘reportable assault’ in the Aged Care Act 1997 (Cth) should be replaced with ‘reportable incident’. With respect to residential care, ‘reportable incident’ should mean:

(a) a sexual offence, sexual misconduct, assault, fraud/financial abuse, ill-treatment or neglect committed by a staff member on or toward a care recipient;

(b) a sexual offence, an incident causing serious injury, an incident involving the use of a weapon, or an incident that is part of a pattern of abuse when committed by a care recipient toward another care recipient; or

(c) an incident resulting in an unexplained serious injury to a care recipient.

With respect to home care or flexible care, ‘reportable incident’ should mean a sexual offence, sexual misconduct, assault, fraud/financial abuse, ill-treatment or neglect committed by a staff member on or toward a care recipient.

Proposal 11–3 The exemption to reporting provided by s 53 of the Accountability Principles 2014 (Cth), regarding alleged or suspected assaults committed by a care recipient with a pre-diagnosed cognitive impairment on another care recipient, should be removed.

Proposal 11–4 There should be a national employment screening process for Australian Government funded aged care. The screening process should determine whether a clearance should be granted to work in aged care, based on an assessment of:

(a) a person’s national criminal history;

(b) relevant reportable incidents under the proposed reportable incidents scheme; and

(c) relevant disciplinary proceedings or complaints.

Proposal 11–5 A national database should be established to record the outcome and status of employment clearances.

Question 11–1 Where a person is the subject of an adverse finding in respect of a reportable incident, what sort of incident should automatically exclude the person from working in aged care?

Question 11–2 How long should an employment clearance remain valid?

Question 11–3 Are there further offences which should preclude a person from employment in aged care?

Proposal 11–6 Unregistered aged care workers who provide direct care should be subject to the planned National Code of Conduct for Health Care Workers.

Proposal 11–7 The Aged Care Act 1997 (Cth) should regulate the use of restrictive practices in residential aged care. The Act should provide that restrictive practices only be used:

(a) when necessary to prevent physical harm;

(b) to the extent necessary to prevent the harm;

(c) with the approval of an independent decision maker, such as a senior clinician, with statutory authority to make this decision; and

(d) as prescribed in a person’s behaviour management plan.

Proposal 11–8 Aged care legislation should provide that agreements entered into between an approved provider and a care recipient cannot require that the care recipient has appointed a decision maker for lifestyle, personal or financial matters.

Proposal 11–9 The Department of Health (Cth) should develop national guidelines for the community visitors scheme that:

(a) provide policies and procedures for community visitors to follow if they have concerns about abuse or neglect of care recipients;

(b) provide policies and procedures for community visitors to refer care recipients to advocacy services or complaints mechanisms where this may assist them; and

(c) require training of community visitors in these policies and procedures.

Proposal 11–10 The Aged Care Act 1997 (Cth) should provide for an ‘official visitors’ scheme for residential aged care. Official visitors’ functions should be to inquire into and report on:

(a) whether the rights of care recipients are being upheld;

(b) the adequacy of information provided to care recipients about their rights, including the availability of advocacy services and complaints mechanisms; and

(c) concerns relating to abuse and neglect of care recipients.

Proposal 11–11 Official visitors should be empowered to:

(a) enter and inspect a residential aged care service;

(b) confer alone with residents and staff of a residential aged care service; and

(c) make complaints or reports about suspected abuse or neglect of care recipients to appropriate persons or entities.

Ageing

'Ageing fears and concerns of gay men aged 60 and over' by Peter Robinson in (2016) 17(1) Quality in Ageing and Older Adults 6-15 considers the destination facing most of us, ie old age.

The author comments

Gay men’s experience of ageing and old age is affected by both universal and gay-specific fears or concerns. Universal fears or concerns are those that are fairly common among the general population, including such things as supported care, aged accommodation, and social isolation. gay-specific fears or concerns mostly related to aged accommodation where other GLBT ageing research (Cronin, 2006; Heaphy, 2009; Hughes and Kentlyn, 2011) shows that gays and lesbians are wary of moving into nursing homes not only for the same reason as members of the general public, that is, it is something elderly people generally loathe thinking about or doing, but also because they fear heterosexist assumptions or homophobia from other residents or their families will affect their living circumstances and arrangements. In relation to supported care and social isolation, research for this paper strongly suggests that their fears or concerns are no different from those of the general public.

Like other elderly people, gay men fear the loss of partner or friends and the effect this can have on their intimate and social lives. And class affects gay men’s experience of old age just as it does the rest of the population (Phillipson, 2013, 1982). This is especially so in terms of aged accommodation and especially in Anglophone countries where policies over the last 30 years have meant that material resources now directly affect how individuals may age and experience old age.

Robinson's findings are that

Analysis of extracts from their life stories showed the men interviewed for this paper drew on two principal narratives when discussing their apprehensions about growing old. The first related to general fears or concerns about old age that would be fairly common among members of the general population. The second narrative related to gay-specific fears or concerns.

His significant claims are that

class affects gay men’s experience of old age just as it does for everyone else; and that fears of being ostracised because of their sexuality were strongest when the men spoke about aged-accommodation settings.

He notes that

With the exception of early work by British scholars such as Ken Plummer (1981), Hart and Diane Richardson (1981), and Jeffrey Weeks (1981), research in the field of GLBT ageing was slow to start, mostly getting going in the mid- to late 1990s and early 2000s, that is, after the worst of the AIDS crisis in the West was over. In her work on lesbian communities in the USA, Arlene Stein (1997) argued that, as the lesbians she studied grew into middle age, their attachment to the lesbian sub-culture changed. Something approaching this was found in an all-Australian study on the lives of middle-aged and old gay men (Robinson, 2008a) where there was evidence of the men moving away from the “centred” gay world where they had socialised in their youth and finding more useful social possibilities among gay and straight friends and family. In that study, gay men aged 60 or older said that they felt marginalised in the gay world of clubs and bars but were relatively sanguine about their outcast status and in some cases pitied the young gay men their superficial preoccupation. Similar accounts were found in a British empirical study of older gay men and lesbians (Heaphy, 2009, p. 126).

Stein’s (1997) argument about middle-aged lesbians being able to move in and out of different settings could help to explain why some gay men in their mid-40s and older become less concerned with the values and practices of the gay world and tended to lead more “decentred” lives (pp.152-3). More recently, a similar pattern – of moving away from the gay world and relying on it less for social/sexual relations – was found in the stories of gay men’s long-term relationships (Robinson, 2013) and in the work of Paul Simpson (2013) on Manchester’s gay village where he argues that middle-aged gay men are capable of both submission and rebellion in regard to ageism (p. 297). ...

The interviewees drew on two principal narratives when speaking of fears or concerns they held in relation to care and accommodation in old age. The first narrative related to fairly universal fears or concerns that the general population holds regarding old age such as supported care, aged accommodation, and social isolation. The second narrative related to gay-specific fears or concerns, which were: the possible effect of homophobic care workers, either those who were home-based carers or working in aged-care facilities; and the possible effect of the heterosexist culture they expected to find in aged-care facilities and/or homophobic residents, care workers or management. If this were the case, some thought they would be forced to return to closet. These fears are similar to those that British sociologists, Sara Arber (2006) and Ann Cronin (2006) found in their work on ageing women and lesbians.

He concludes

Further research would be useful in testing the reality of gay men’s fears about heterosexist or homophobic attitudes among other residents or staff in aged-care accommodation. The fact that these fears are being more widely discussed suggests that GLBT baby boomers are likely to effect cultural change as more of them take up residence in aged accommodation. The sort of research that will help determine how entrenched or easily shifted is anti-gay prejudice would include in-depth interviews with gay men who had legal capacity and were receiving in-home supported care or living in aged accommodation. The two variables are social class and time. Social class because it is likely men living in high-cost, aged-care accommodation would have greater privacy and time because as mentioned as more baby boomers take up residence, their presence will bring about cultural change and underline the importance of policies such as ageing with dignity that are more in evidence in hospitals and aged-care facilities in Australia, Britain, and New Zealand and similar countries.

'Permanent personhood or meaningful decline? Toward a critical anthropology of successful aging' by Sarah Lamb in (2014) 29 Journal of Aging Studies 41-52 comments

The current North American successful aging movement offers a particular normative model of how to age well,one tied to specific notions of individualist personhood especially valued in North America emphasizing independence, productivity, self-maintenance, and the individual self as project. This successful aging paradigm, with its various incarnations as active, healthy and productive aging, has received little scrutiny as to its cultural assumptions. Drawing on fieldwork data with elders from both India and the United States, this article offers an analysis of cultural assumptions underlying the North American successful aging paradigm as represented in prevailing popular and scientific discourse on how to age well. Four key themes in this public successful aging discourse are examined: individual agency and control; maintaining productive activity; the value of independence and importance of avoiding dependence; and permanent personhood,a vision of the ideal person as not really aging at all in late life,but rather maintaining the self of one's earlier years. Although the majority of the (Boston-area, well-educated, financially privileged) US elders making up this study, and some of the most cosmopolitan Indians, embrace and are inspired by the ideals of the successful aging movement, others critique the prevailing successful aging model for insufficiently incorporating attention to and acceptance of the human realities of mortality and decline. Ultimately, the article argues that the vision offered by the dominant successful aging paradigm is not only a particular cultural and biopolitical model but, despite its inspirational elements, in some ways a counterproductive one. Successful aging discourse might do well to come to better terms with conditions of human transience and decline,so that not all situations of dependence,debility and even mortality in late life will be viewed and experienced as “failures” in living well