'The COVID Cyborg and Protecting the Unaugmented Human' by Kate Galloway in (2020)
Alternative Law Journal comments
This article examines the increasing tendency towards governance of people through their representation via data. In its most contemporary iteration, the COVID-19 pandemic has raised the prospect of contact tracing apps. While public discourse about the apps has focused principally on the important issue of data privacy, there are other possible effects whereby participation in such schemes might become a pre- requisite to accessing services or basic rights—either from government or from corporations. The pathway to acceptability of applying our data in this way is already paved, through fitness monitors and other technologies by which we represent ourselves. This article sets out the foundation of such technologies and their application, before outlining their effect on the recognised boundaries of governance and the conception of the holder of rights and the substance of those rights.
Galloway argues
In 2018, biohacker Meow-Ludo Disco Gamma Meow-Meow was found guilty of travelling on Sydney buses without a valid ticket. Rather than carrying Sydney transport’s Opal Card with him, he had instead implanted its chip into his hand. He had indeed tapped on when entering the bus—so had paid for his trip. However, Sydney transport authorities were not satisfied with this, alleging that he had breached the card’s terms of use.
Meow-Meow claimed that his case was based on the principle of ‘cyborg rights’. The modification of his body through embedding technology-capable hardware is a feature of a posthuman evolution, a ‘leaky distinction between animal-human and machine’. As an activist pushing the boundaries of the definition of human, Meow-Meow was simultaneously pushing the boundaries of the rights held by an altered human before the law.
The science fiction-like nature of body modification is occurring in more prosaic ways. A pacemaker, for example, might transmit data about its human operating system in the same way that Meow-Meow’s Opal card chip transmitted data concerning payment of a bus fare. Whether therapeutic interventions properly constitute a ‘cyborg’ remains an open question, however to the extent that they might, the pacemaker example certainly poses less of a challenge to our general conceptions of humanity than does a more extreme bodily modification, possibly undertaken by oneself.
Machines and other hardware (and software) may be implanted within us, but more readily we are enhancing our physical capabilities by carrying them on our person. Smartphones are ubiquitous, and as they extend our intellectual capacity, ability to communicate, and even
provide biophysical feedback for lifegiving treatments, and share myriad personal data with government and corporations alike. Fitness trackers worn on the wrist measure our physiological signs not only re-presenting them to their wearer as a variety of metrics by way of graphs and icons, but also sharing with other users and their corporate creators. Our devices also call for biometric data to unlock their features. We readily submit to fingerprints and facial recognition, granting global corporates the most intimate of insights into ourselves.
At the same time as we have willingly released aspects of ourselves, through our data, in the private sphere our government has constructed a surveillance architecture affording security services wide scope for access to our telecommunications data and our biometric data. Although governments have pushed through the suite of legislation for over a decade, this has not come without a cost. The uptake of My Health Record, a putative personal database of one’s medical information, has been poor. And now, in the thrall of a pandemic, government is proposing a contact tracing app whereby a user’s proximity to another person (within 1.5m for more than 15 minutes) would be identified through Bluetooth technology, encrypted, and recorded in the app. If a contact is diagnosed with COVID-19, then all contacts would be notified of that.
Critique of the app—at the time of writing not yet released—has generally been concerned with data privacy per se. This is, of course, important. However, independently of data privacy is a question the opposite to that encountered by Meow-Meow. For the foreseeable future, and in particular while we are in a declared public health emergency, our infection status regarding COVID-19 is central to our freedom, and indeed, to wider societal freedom. In that sense, a tracing app —a nd its data — effectively function as an extension of ourselves. They are a means of reassurance not only to public health officials running the program, but to wider society, that we, collectively, are safe. Meow-Meow exercised his freedom to extend the functioning of his body by inserting the Opal card chip. But will we be free from extending our corporeal body through the incorporeal data contained in a contact tracing app? Without making the app mandatory, there are multiple ways that it might entrench itself within society to create classes of people. Those whose provenance is known (via the app) and those whose provenance is not.
This article suggests that the COVID-19 pandemic will test the boundaries of our personhood in a new way. Despite the existing state/corporate data infrastructure whereby others are able to construct a picture of our most intimate lives, there is not yet a universally compelling basis for production of personal data as a threshold for acceptance into places or institutions. Contact tracing may present one. And if our data is to be carried with us as an integral and qualifying part of our interface with the world around us, it may be considered as part of our person. To the extent that our data engagement differentiates us from other humans, the question arises of the protections available at law. In particular, with an ‘extended’ human, the question arises about where recognised boundaries of governance lie, whether the extended human is the bearer of rights, and if so, what is the substance of those rights.
Part II outlines the basis on which our data is effectively an extension of ourselves, and as such constitutes the extended human as a species of ‘cyborg’ following Haraway’s interpretation. Part III then hypothesises about a variety of social contexts that might prefer
or demand, what I call here a ‘COVID cyborg’—a person enhanced by their COVID tracing data—to the exclusion of those not so enhanced. It envisages our society comprising two classes of people: the COVID cyborg, and the unaugmented human. Unlike the experience of Meow-Meow, the COVID cyborg has the potential to be embraced, effectively affording them rights superior to those of the unaugmented human. If this is to be the case, the law needs to comprehend both cyborg and unaugmented status as equal subjects of protection.
