• Autonomous Weapons

  Q Industries is an international defense contractor that specializes in autonomous vehicles. Q’s early work focused on passive systems, such as bomb-defusing robots and crowd-monitoring drones. As an early pioneer in this area, Q established itself as a vendor of choice for both military and law enforcement applications. Q’s products have been deployed in a variety of settings, including conflict zones and non-violent protests.

  In recent years, Q has suffered a number of losses as protestors and other individuals have physically attacked the vehicles with rocks, guns, and other weapons. To reduce this problem, Q has begun to experiment with automated active responses. Q’s first approach was to employ facial recognition algorithms to record those present and to detect individuals who may pose a threat. This approach was shortly followed by automated non-lethal responses, such as tear gas, pepper spray, or acoustic weapons, to incapacitate threatening individuals.

  Q has recently been approached—in secret meetings—by multiple governments to expand this response to include lethal capabilities and for more aggressive purposes.   For instance, some governments are interested in targeted shootings of known individuals or releasing small-scale explosives to disperse political protests.  Many of these governments are authoritarian and are interested in using a Q vehicle to kill protestors and/or political opponents.  This has alarmed a number of engineers at Q who believe that engineers have unique duties to promote public safety and welfare.  The National Society for Professional Engineers, for instance, holds as its first principle of ethics that engineers shall “[h]old paramount the safety, health, and welfare of the public.”   For some engineers at Q, a purely autonomous device with lethal, aggressive capabilities itself is ethically problematic, and selling such a device to authoritarian governments seems anathema to public safety and welfare.   Q executives contend that what clients do with their products is not Q’s responsibility.

   

  Possible Prompts

  • Should Q make such an autonomous weapon?
  • Should there be a limit to the clients to whom they sell such a weapon? 
  • Would it be ethical for Q engineers to work on it?  
• Disagreement About Non-Compete Agreements

  To work effectively, many organizations must share proprietary information (e.g., trade secrets) with their employees—information that competitors would love to get their hands on.   Indeed, to acquire such information, companies often hire employees from competitors with large contracts.   Such employees routinely sign non-disclosure agreements with their employer, but once a former employee is working with a competitor it can be hard to know if they are honoring, in letter and in spirit, their non-disclosure agreement or if they are sharing the trade secrets of their previous employer.  Moreover, there is a large grey area between directly using proprietary knowledge of one’s previous employer and using one’s own experience base (e.g., the “tricks of the trade”).  As such, to protect their proprietary information, many companies, especially in high tech fields, also require Non-Competition Agreements by which their employees agree not to take employment with competitors, usually for a certain period of time. 

  Companies also use such agreements due to the significant amount of training required for their employees.  For example, in industries like power line maintenance, where a new lineman requires 2-4 years of on-the-job training, utility companies often use a non-compete to ensure that the new lineman, once fully trained, does not leave the employer for a higher salary elsewhere. The agreement is that in exchange for substantial training, the employee will work exclusively for the company that provided the training for a certain period of time.

  However, non-compete clauses are controversial.  They are anti-competitive practices and are associated with a host of harms. For instance, non-compete agreements limit entrepreneurial innovation because people who sign such agreements are often prohibited from realizing the gains associated with innovative ideas. The FTC estimates that its proposed ban on non-compete clauses would result in $250-$296 billion per year in increased wages. Paul Krugman argues that non-compete clauses “don’t just reduce your wages. They also reduce your options if you’re mistreated.” One  study reports that banning non-competes would close the race and gender wage gaps by 3.6-9.1 percent because a biased workplace is more difficult to leave with a non-compete in place.

  While the FTC has expressed concern that non-compete clauses inhibit labor markets and restrict choice in employment, others argue that more choice is not always better. Harrison Frye argues that non-compete clauses can be rational where the commitment devices help to solve coordination problems associated with uninhibited choice. Consider, for example, cases of specialized and expensive training which may benefit workers and employers, but which doesn’t make sense to pay for without a commitment in advance. Further, Frye maintains that the real problem people have with non-competes is employer domination, which can be addressed by governments providing more robust unemployment benefits and union negotiating power providing for greater employee voice. The AFL-CIO describes non-compete agreements as “a growing problem for mid-wage, skilled trades workers like plumbers.”

   

  Is it fair for an employer to insist that would-be employees agree to “Non-Compete” clauses in their contracts?

• The Permanent Fund Dividend

  The Prudhoe Bay Oil and Gas lease sale in September of 1969 brought in $900 million in revenue to the state of Alaska . While there was a significant amount of debate at the time as to whether some or all of the money from the lease sale should be saved, ultimately the proceeds were used to support infrastructure and social programs throughout the young state.

  In 1974, as construction of the Trans Alaska Pipeline neared completion, Alaskans were looking towards the future and deliberating on how to best utilize the anticipated mineral royalties. Many of the state’s decision makers supported putting a portion of the expected revenues into a ‘permanent fund,’ where they would be out of reach of day-to-day government spending and generating income into perpetuity.

  Alaska’s Constitution does not allow for dedicated funds, so in order to direct these oil revenues into a permanent fund, the Constitution had to be amended.  In 1976 a Constitutional Amendment establishing the Permanent Fund was approved.

   

  Alaska Constitution Article IX, Section 15
  Section 15. Alaska Permanent Fund.

  At least twenty-five percent of all mineral lease rentals, royalties, royalty sale proceeds, federal mineral revenue sharing payments and bonuses received by the State shall be placed in a permanent fund, the principal of which shall be used only for those income-producing investments specifically designated by law as eligible for permanent fund investments. All income from the permanent fund shall be deposited in the general fund unless otherwise provided by law.

  On February 28, 1977, the Permanent Fund received its first deposit of dedicated oil revenues totaling $734,000. Investments were comprised almost entirely of bonds.  In 1980, Governor Jay Hammond signed a bill in 1980 creating the Alaska Permanent Fund Corporation (APFC) for the purpose of managing investments.  The idea was that the permanent fund could be used for investments to grow.

  That year Legislature also approved, by statute not constitutional amendment, the first Permanent Fund Dividend (PFD) program.  While the original idea of the Permanent Fund was to provide for the future of Alaska after oil revenues were depleted, the dividend program used a certain amount of the fund’s earnings each year and distributed them to every Alaskan.  The first dividend check of $1,000 was distributed two years later.

  The dividend was justified on a variety of grounds: it gave current Alaskans greater stake in the health of the Permanent Fund, which it would make it harder to misuse its earnings fund for boondoggle projects.   The dividend was also seen as a way to steer some of the oil wealth of the state directly to Alaska residents.  Interestingly, while not its intention, the dividend also established a universal basic income benefit and contributed to Alaska’s relatively low poverty rate.  

  Unfortunately, as oil revenue declined the state increasingly found itself in the paradoxical situation of distributing billions of dollars in dividend checks while running billions of dollars of deficits.  With no income tax, these deficits were covered by various “rainy day” funds.  As these funds were exhausted the legislature re-designed the dividend program to provide significantly lower payments in order to use more Permanent Fund earnings to pay for state services.   

  However, reducing dividend payments is controversial.  Many Alaskans believe they have a right to the dividend.  Others point out that reducing the dividend is regressive in that, as a percentage of income, it hurts poor Alaskans the most.   On the other hand, without reducing the dividend the state would be required to drastically slash services and this too would hurt poorer Alaskans who rely most on those services.   There have been a variety of calls for a state progressive income tax.   This would reduce the burden on poorer Alaskans and would also generate revenue from non-residents who work in the state.  But this too is controversial and unpopular.  It might also create the odd situation in which the state collects taxes from residents while at the same time paying them a dividend.   

   

  Possible Prompts:

  • Do Alaskans have a right to a Permanent Fund Dividend?
  • Should the state institute a progressive income tax in order to preserve a relatively high dividend payment?

   

  Note: portions of this case have been drawn verbatim from the Permanent Fund Corporation’s history of the fund.   https://apfc.org/who-we-are/history-of-the-alaska-permanent-fund/

• A Right to Public Camping?

  In cities like Anchorage, Alaska inflation and a hot real estate market has led to a shortage of affordable housing, which has increased the number of unhoused individuals.   For many of the unhoused, physical, and mental illness also plays a significant role, and limited and inequitable health care access makes it difficult for such individuals to get the care they need to be healthy.   For example, treatment facilities for mental illness in Alaska are widely recognized as underfunded and having insufficient capacity to meet community needs.   Importantly, there is also insufficient shelter capacity for unhoused community members.  Indeed, with winter fast approaching, Anchorage currently has no mass low barrier shelter.

  These factors have led to more unhoused individuals camping in urban areas.  However, such camping has raised several concerns including crime in adjacent neighborhoods, unsanitary conditions, urban wildfires, the safety of users of urban parks and the safety of the unhoused themselves. 

  Many cities such as Anchorage banned unpermitted urban camping and would dismantle and remove such camps.   However, the Ninth Circuit Court of Appeals has ruled that banning urban camping, when there is insufficient shelter space for the unhoused, amounts to “cruel and unusual punishment” because it criminalizes an activity which some citizens have no choice but to engage in.  As Tristia Bauman, Senior Attorney for the National Homelessness Law Center, put it “[s]o long as people have no option but to live outside, they should not be punished for doing what all human beings must do to survive in that condition.” 

  Critics have argued that such a sweeping right is harmful to the public, including the unhoused.  Lawyers representing Boise, Idaho argued "[p]ublic encampments, now protected by the Constitution under the Ninth Circuit's decision, have spawned crime and violence, incubated disease, and created environmental hazards that threaten the lives and well-being both of those living on the streets and the public at large." 

  Randy Shulte of the Anchorage Assembly agrees: “At the end of the day, I’m getting more and more feedback from citizens that they’re getting fed up with the hands being tied for the municipality, and the rights of the homeless encroaching on their rights, the taxpaying citizens of Anchorage,” Sulte said. “And at the end of the day, people have to be held accountable for bad behavior.”

   

  Question: Is it just for municipalities to ban urban camping of the unhoused when there is insufficient shelter space available?

• The FBI & Apple

  In December 2015, the FBI attained the iPhone of one of the shooters in an ISIS-inspired terrorist attack that killed 14 people in San Bernardino, California. As part of the investigation, the FBI attempted to gain access to the data stored on the phone but was unable to penetrate its encryption software. Lawyers for the Obama administration approached Apple for assistance with unlocking the device, but negotiations soon broke down. The Justice Department then obtained a court order compelling Apple to help the FBI unlock the phone. Apple CEO, Timothy Cook, publicly challenged the court in an open letter, sparking an intense debate over the balance between maintaining national security and protecting user privacy.

  Apple and its supporters, including top technology companies such as Google and Facebook, made the case on several fronts that the court order threatened the privacy of all individuals. First, according to Apple, the order effectively required the company to write code, violating its First Amendment right to free speech by forcing the company to “say” something it did not want to say. Previous court cases had already established computer code as legally protected speech. Second, such a backdoor, once created, could fall into the wrong hands and threaten the privacy of all iPhone owners. Finally, it would set a dangerous precedent; law enforcement could repeatedly require businesses such as Apple to assist in criminal investigations, effectively making technology companies an agent of government.

  Representatives from both sides of the political aisle offered several arguments in favor of the Justice Department’s efforts and against Apple’s stance. Their central claim was that the U.S. legal system establishes constraints on the government’s access to private information which prevent abuse of search and surveillance powers. At the same time, the law still allows authorities to gain access to information that facilitates prevention and prosecution of criminal activities, from terrorism to drug trafficking to child pornography. Critics of Apple also rejected the slippery slope argument on the grounds that, if Apple cooperated, it could safeguard the code it created and keep it out of the hands of others, including bad actors such as terrorists or criminal groups. Moreover, Apple was accused of being too interested in protecting its brand, and even unpatriotic for refusing to comply with the court order.

  Ultimately, the FBI dropped the case because it was able to circumvent the encryption on the iPhone without Apple’s help

   

  Did Apple act ethically by refusing to cooperate with the FBI?

• Facial Recognition Software

  Police in several cities, including New York and Miami, used facial-recognition software to identify people who allegedly engaged in criminal activity during the 2020 Black Lives Matter protests. For example, Miami police used Clearview AI software to identify a woman in a Miami protest who allegedly threw a rock at a police officer in May, injuring him. In the arrest report, according to the woman’s attorney, there is no mention of the software, only that the suspect was identified “through investigative means.” Facial-recognition software is widely used in other places around the world, including China and the U.K., but the United States is just beginning to explore the use of the software, the accuracy, and whether any legal limitations of privacy apply. Clearview AI claims a database of more than three billion images culled from the Internet, including social media sites. The attorney for the Miami woman who was arrested said that they have not been told where the police or Clearview AI obtained her image or even if the comparative image is of her. Without knowing the origin of the identifying images, those who are identified cannot know if the photograph was taken in private or if the picture was posted without her permission. A few January 6 protesters have made similar arguments. 

  Facial-recognition software is often inaccurate. Joy Buolamwini, a professor at MIT, found that the software had a gender and skin-color bias. She found that the primary database is based on visual aspects of white males, making the results less certain for people of color and females. The National Institute of Standards and Technology found that facial-recognition systems it tested had the highest accuracy when identifying white men but were ten to a hundred times more likely to make mistakes with Black, Asian, or Native American faces. Despite the inaccuracies, many law enforcement agencies continue to use the software, sometimes leading to wrongful arrests. Civil rights organizations have already sided against facial-recognition software and are asking for state and federal regulation to restrict the use of these systems. Some states, including California, Washington, Idaho, Texas, and Illinois are already regulating or banning their use altogether.

   

  Assuming the facial recognition software is effective, overall, in reducing crime and/or identifying and apprehending criminals, is its use by law enforcement ethical given its inaccuracies, particularly along racial and ethnic lines?

• Ventilator Triage

  It is the height of the COVID 19 pandemic.  Mr. Nyse is 88 years old and extremely sick with COVID-19 and requires ventilation.  His odds of recovery given his age and health are not great—slightly less than 50%.   He is placed on a ventilator and his condition neither improves nor declines over two weeks.    

  In the meantime, there are numerous sick patients arriving at the ER who also need ventilators, but none are available and other hospitals, also stressed by the pandemic, are not accepting transfers.   Many of these new patients, while extremely sick with COVID, are otherwise healthy and fairly young (20’s and 30’s).  These patients would likely recover quickly and have a much longer life ahead of them compared to patients such as Mr. Nyse.  Indeed, it is likely that the ventilator Mr. Nyse is using could be used to save two or even three younger patients given that the younger patients because such would need the ventilator for only a couple of days (as opposed to the weeks Mr. Nyse has used it).   

  Among the patients using the hospital’s ventilator, Mr. Nyse is both the oldest and has the lowest probability of recovery.  However, removing him from the ventilator will certainly lead to his death and Mr. Nyse has repeatedly expressed his will to live.   When the subject was broached with his family, they made clear they believed that Mr. Nyse would not consent to being removed from the ventilator-- and neither would they.   Without consent, there is grave concern that intentionally removing him from life sustaining (and not futile) treatment would violate his autonomy and the medical duty to “do no harm.” 

  Nonetheless, the health team strongly considers removing Mr. Nyse in order to make the ventilator available for other patients.  

   

  Would it be ethical to remove Mr. Nyse from the ventilator without his consent in order to make it available for younger patients with a better chance of recovery?

• Conscientious Objection

  On January 21, 2019, Andrea Anderson, mother of five, left her home in McGregor, Minnesota to pick up her prescription for emergency contraception (EC) at their local pharmacy. Once she arrived, however, the only pharmacist there explained that he wouldn’t be able to fill her prescription due to “personal reasons” and his beliefs. In her lawsuit, she also claims that he discouraged her from getting it filled elsewhere.  Ms. Anderson had to drive more than 50 miles in a snowstorm to the nearest town for her prescription to be filled. The right timing is critical for EC. The popular Plan B (levonorgestrel) is most effective within 24-72 hours after unprotected intercourse. Ms. Anderson’s prescription for Ella is more effective for some individuals and stays effective for longer. 

  Though a variety of types of EC are on the market, access is another story. Across the U.S., surveys have shown greater access to Plan B but far less coverage of other options, and varying knowledge of EC as well.  Though the FDA authorized Plan B to be offered over the counter without age restrictions in 2013, 4 in many cases, pharmacies store Plan B behind the counter, and some pharmacists believe age restrictions for Plan B still exist. Ella and other forms of EC are by prescription only, and so for a variety of reasons, a pharmacist, nurse practitioner, or another authorized professional must still get involved in dispensing the medication. Some professionals cite “conscientious objection” in refusing to dispense EC, and after the U.S. Supreme Court’s Dobbs decision, such moral objections are getting greater attention. 5 

  The right to refuse to participate in acts that conflict with personal more or religious convictions has a long history in U.S. Protections for conscientious objectors in a time of war are well known. Federal statutes offer civil rights protections for healthcare providers who object to participating in abortion and other reproductive services, and state assisted suicide laws always make participation optional for healthcare professionals.  The American Pharmacy Association recognizes a right of conscience for pharmacists, but its Code of Ethics holds that the pharmacist is bound by fiduciary duties including respect for the “autonomy and dignity of each patient” and to place patient well-being at the center of professional practice. 7 

  In rural America, however, as in Ms. Anderson’s case, claims of justice collide. Alaska’s vast rural geography, largely accessible only by plane, dog sled, and all-terrain vehicles, is home to a diverse array of Alaska Native peoples and traditions. Though weather can delay flights for days at a time, and mail delivery is sporadic, strong communities tied by connections to the land are central for rural Alaska. Unfortunately, the long legacy of colonization of the native peoples of Alaska, as well as the scattered access to law enforcement and healthcare, contribute to Alaskans having among the worst health outcomes in the U.S..  In addition, rates of rape and sexual assault are much higher in Alaska than the in the rest of the U.S.. 

  The federal Indian Health Service supports clinics and hospitals across Alaska, and private options exist as well. Nevertheless, many villages and towns have access to only one pharmacy or dispensing professional, and the shortage is growing.   This shortage exists for many rural areas in the U.S. When a provider objects to providing patient care, such as dispensing EC, many recommend that the provider refer a patient to another provider. Due to staff shortages and the nature of Alaska, unlike their urban counterparts, rural pharmacists are often unable to refer patients to another provider within a reasonable distance. 

   

  Is it ethical for a pharmacist to refuse to fill a valid prescription on grounds of conscientious objection when finding an alternative pharmacist requires significant travel for the patient?

© Association for Practical and Professional Ethics 2023