American sociobiologist Edward O. Wilson once said, “the real problem with humanity is the following: we have palaeolithic emotions, medieval institutions and godlike technology.”
It is a profound quote that illustrates the world we live in today as technologies such as artificial intelligence and neurotechnology rapidly advance. Neurotechnologies can decode and visually project our thoughts, a Brain Computer Interface (BCI) can give quadriplegics the ability to regain autonomy, and earbuds can read your mind to determine your peak focus time as well as spot moments of stress.
But as these “godlike” technologies advance exponentially, the gap between science and the law widens and an intermediary with a deep understanding of both fields is needed.
It is a problem that Harry Lambert, a Barrister and a Coroner in Inner North London, is hoping to solve and is the driving force behind his founding of the Institute of Neurotechnology & Law (INL).
Based in London and launched in May this year, the INL brings together a diverse, multidisciplinary group of 26 experts from 25 countries, including solicitors, barristers, academics and scientists, dedicated to researching and understanding the legal, ethical, and social ramifications of neurotechnology and to educate legal practitioners and lawmakers to close the gap between science and the law.
“[T]he stakes are high with neurotechnology, and we’ve got to get it right,” Lambert said during the opening address of the institute’s inaugural lecture earlier this month.
But he said there’s still time as neurotechnology hasn’t yet “entangled” itself into our everyday lives in the way that the internet and social media has. He believes “it’s a lot easier to prevent harm than to undo the harm that’s already been caused”.
“I think there’s an increasing awareness that we got things very wrong with social media, we don’t want to sleepwalk into an apocalypse by being guilty of what (political theorist) Langdon Winner has called technological somnambulism,” Lambert observed.
In his address, he referred to Wilson’s quote as an accurate summation of the problem and why the INL exists.
Lambert said neurotechnology is godlike as it can read your thoughts, allow you to communicate with someone who with the rare neurological disorder ‘Locked-in syndrome’, can make blind people see, and deaf people hear.
“It’s absolutely brilliant, but we also live in a society, dare I say it, that is not always exhibiting the qualities of love, wisdom and prudence at a godlike level. We live in a society which, by contrast, has at its root a ‘gain theoretic dynamic’”.
Lambert elaborates on this by referring to the body image problem that social media presents for teenage girls.
“Nobody wants young teenage girls to have body dysmorphia and to start committing suicide. That is not a strategic objective for anybody, and yet no one company can stop it.”
Lambert says that none of the social media companies want to be the first to change their algorithms and to regulate for something healthier as it would not be compatible with their fiduciary obligations. It’s a situation that nobody wants but nobody can stop.
While not as woven into the fabric of society just yet, neurotechnology is a rapidly growing field and quickly finding its way into the consumer market, which is why Lambert says there needs to be an “audit check” now, instead of an “arms race to the finish line to get that first mover advantage”.
Allan McCay, INL President and Co-director of The Sydney Institute of Criminology and an Academic Fellow at the University of Sydney Law School, says that while there are non-governmental new technology and human rights organisations, there are no organisations that focus on neurotechnology and the law.
He says while the issue of technology and human rights is important, the INL goes beyond that and dives into specific issues for the law and the legal profession.
The game is changing. Neurotechnological devices can now give us access to people’s mental content, there are neurotechnologies that can tell us if someone is paying attention, or decode mental images and words. As scary or exciting as this may sound, it brings up a lot of privacy concerns and one of the big questions is whether the current international human rights framework and local laws are adequate.
McCay lectures in Criminal Law and has posed this question: What would be the conduct that constitutes a criminal act if someone uses a Brain Computer Interface (BCI) to commit an offence?
McCay puts forward a hypothetical scenario of someone using a BCI to control a drone and fly it into someone with the intent to cause injury. The act is a mental one without any involvement of the muscle system.
“[F]or criminal law, it seems rather strange, because it seems like the mental dimension, the guilty mind, and the conduct constituting the criminal act don’t seem so distinct,” McCay says.
While the Australian Human Rights Commission (AHRC) is focusing on neurotechnologies and how they impact human rights, McCay believes the issues are much wider and that the Australian Law Reform Commission (ALRC) should go beyond human rights and consider which areas of the law are challenged and which areas are not, if neurotechnology becomes more prevalent in society.
But the “if” doesn’t seem so far-fetched when you consider the amount of investment going into neurotech companies led by the likes of Elon Musk, Bill Gates, Jeff Bezos and Gina Rinehart, and the number of neurotech consumer products that have been released. It’s increasingly more a question of “when”.
However, it’s not all doom and gloom. McCay says we shouldn’t forget about the considerable upside of neurotechnology. He refers to the US neurotechnology company Neuralink, implanting its “N1″ chip in a person paralysed from the neck down earlier this year, and how the chip gave the patient the ability to do things he couldn’t before, regaining some autonomy.
He says the legal response has got to be measured and it’s important not to stop the progress in alleviating suffering. It shouldn’t just be a knee jerk reaction to stop everything when the technology infringes on a particular area of law. We need to think about striking a balance between regulating and gaining very important benefits.
“There’s something wonderful that could be lost if the law doesn’t respond appropriately,” McCay says.
This balance requires a great deal of cooperation between different countries but also different academic disciplines which is what makes the INL unique. As Lambert said, the INL aims to help society to get the “best out of neurotechnology, but in a way that promotes the betterment of humanity, and not simply advancement for the sake of advancement.”
While still in its infancy, the INL is doing important work to bring these issues to light and reach a wider audience through a number of upcoming events in different countries. It also plans to launch INL in Ibero-America to expand into the Spanish speaking world. Learn more about the institute here.