By Jack Younis

 

 

 

In the 2007 hit television show Chuck, an unwitting computer geek is turned into a CIA secret agent/asset when he downloads fighting skills and a database of government intelligence into his brain.[1] Regardless of the action-comedy shenanigans that ensue, the concept of connecting the human consciousness directly to technology has continued to capture the cultural zeitgeist. Now, neurotechnology and its related fields have advanced beyond discussion in popular culture and science fiction; it has become an increasingly topical reality. Moreover, as advances are made in neurotech, the legal question presented by this progress becomes increasingly demanding.

Much like Chuck’s download and transmission of CIA data to his brain, one facet of neurotechnology is the ability “download” data from the technology itself. [2] The brain itself is a biological computer, relying on the neurological firing of electric signals to execute commands, not unlike those of an actual computer.[3] The resulting application and development of technology that interprets these signals and firings have led to significant advancements in neurotech.[4]

With such increasingly adaptable technology, many in the field are calling for increased regulation of the technology. As professor Rajesh P.N. Rao from the University of Washington in Seattle puts it, “It’s a good time for us to think about these devices before technology leaps ahead and it’s too late.”[5] And regulatory commentary has already begun – the International Organization for Economic Co-operation and Development (OECD) issued in May of 2021 the first international standard for regulating neurotechnology.[6]

Promulgating recommendations for the novel technology include developing a set of nine principles in which governance over the novel industry should consider, not limited to promoting responsible innovation, prioritizing safety assessments, and safeguarding brain data and other information.[7]

In addition to regulatory guidance conversation, the adaptation of these technologies has become prevalent in legal discussions as well. Prominent in the conversation is Dr. Allan McCay, who was named one of the most influential lawyers of 2021 by Australasian Lawyer.[8]  Dr. McCay, a criminal law professor at the University of Sydney Law School, recently published a topical report addressing these concerns within the past year.[9] His report focuses not only on the social, political, and economic concerns related to neurotechnology, but the ethical and legal implications that follow suit.[10] Mirroring the issuance put forth by the OECD, Dr. McCay’s work strongly hones in on the ethical steps that must be considered as progress continues to be made, emphasizing “how the law should respond” in addition to how it is applied.[11]

Even with the careful consideration of neurotechnology’s future, every concern is not strictly related to the restriction of this developing industry. Some find that regulations themselves need breathing room to operate effectively. As one article puts it, “Outright bans of certain technologies could simply push them underground, so efforts to establish specific laws and regulations must include organized forums that enable in-depth and open debate.”[12] Much like the OECD and Dr. McCAy, Yuste and the Morningstar Group contend that the development of neurotechnology requires consideration beyond technological implications; legal questions related to privacy and consent, agency and identity, augmentation, and bias must all be accounted for as part of the discussion.[13]

Regardless if neurotechnology ever enables humans to download martial moves and spy secrets directly to their consciousness, the emergence of this technology will create progressively more and more questions. Whether it is related to the impact on administering justice or increasing development to higher capabilities, balancing outcomes and promoting conversation surrounding neurotechnology will most likely continue to elevate, and the legal field must stay prepared.

 

 

 

 

[1] Chuck: About, NBC (2023), https://www.nbc.com/chuck/about.

[2] Julia Masselos, Neurotechnology, technology Networks (Feb. 11, 2022), https://www.technologynetworks.com/neuroscience/articles/neurotechnology-358488.

[3] Id.

[4] Id.

[5] Esther Shein, Neurotechnology and the Law, 65 Communications of the ACM, no. 8, 2022, at 16-18, https://cacm.acm.org/magazines/2022/8/262912-neurotechnology-and-the-law/fulltext.

[6] OECD, Recommendation of the Council on Responsible Innovation in Neurotechnology, OECD Legal Instrument (Dec. 11, 2019), https://legalinstruments.oecd.org/api/print?ids=658&Lang=en.

[7] Id.

[8] Allan McCay, Neurotechnology, law and the legal profession, The Law Society (August 2022), https://www.scottishlegal.com/uploads/Neurotechnology-law-and-the-legal-profession-full-report-Aug-2022.pdf.

[9] Id.

[10] Id.

[11] Id. at 14.

[12] Rafael Yuste et al., Four ethical priorities for neurotechnologies and AI, nature  (Nov. 9, 2017), https://www.nature.com/articles/551159a#citeas.

[13] Id.

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