The law professor and novelist untangles today’s strangest biotech cases

What are the emerging legal and ethical issues with Facebook?
As we all begin to live a parallel life on the web, traditional privacy rights are slipping away. Colleges and companies routinely search Facebook and MySpace to determine whether to admit or to hire people. According to a 2009 Harris poll, 35 percent of employers reject job applicants because of information found on social networks—if the person is dressed provo­catively in photos, writes about getting drunk, or complains about past employers, co-workers, or clients (all perfectly legal behaviors).

Almost every personal injury case now has a social network connection. When a hospital clerical worker’s chair collapsed, she suffered such extensive injuries that she underwent four operations to insert rods in her spine and screws in her neck. The defendant chair company won a court order for access to her present and past Facebook and MySpace posts. The judge held that if photos showed her smiling or traveling [after the accident], she could not have been injured that badly. But why shouldn’t someone with a horrible injury still be able to show a stiff upper lip on the web?

Privacy has been an important legal right since the U.S. was founded. I favor greater privacy protections for people using social networks. Along those lines, pending legislation in Germany would forbid employers from using social network information to deny people jobs or promotions. The march of technology does not have to trample the concept of individual rights.

What’s wrong with patenting genes?
Each of us has around 25,000 genes in our body—strings of chemicals in a double helix. Twenty percent have been patented. But those patents should never have been granted. Patents are supposed to be granted on inventions, like the cotton gin and the iPhone. Under patent law, no one is allowed to patent products of nature.

Gene patents dramatically increase the cost of health care. For 20 years, a gene patent holder controls any use of “its” gene. A patent holder can forbid everyone else from testing the gene and can charge whatever it wants for a test.

One company has filed for a patent on a genetic sequence that indicates whether patients will benefit from its asthma drug. But the company has said that for the 20-year term of the patent it will not allow anyone to use the sequence to determine whether its drug will help or harm patients. While such information is crucial to physicians and patients, the use of the sequence to identify people who would not benefit from the drug would diminish the market for the drug.

What’s your position on human cloning?
An infertility doctor in the U.S. wants to start cloning human beings. But one-third of cloned animals die shortly before or shortly after birth. If a disease were killing one-third of children, we’d declare it a public-health disaster. We wouldn’t be opening clinics to do it. And even if the process were perfected to have no physical risks, there would still be psychological risks for the children.

Shortly after Dolly the sheep was cloned, a survey of Chicagoans suggested cloning Michael Jordan. But pity the poor child who is the clone of Michael Jordan. If he breaks his kneecap at age ten, will his parents consider him worthless? Will he consider himself a failure? And what if cloned MJ wanted instead to be a musician, scientist, or computer gamer? Would the couple who chose his genes—or even paid for them—let him follow his own passions?

And if the original Michael Jordan died young of an inheritable cardiac disorder, then his clones might be discriminated against. Children shouldn’t have to live with a hand-me-down genome.