A series of developments in the field of neurotechnology holds wonderful potential, but also brings challenges for lawyers and might even threaten our capacity to choose freely.
So, what has been happening? In November of last year, Elon Musk’s Neuralink, a neurotechnology company which had earlier demonstrated that a monkey with one of its brain-implants could play a computer game by thought alone (rather than using its body), announced that it hopes to begin human trials on their device in 2023.
Shortly before Christmas, Jeff Bezos and Bill Gates invested in one of Musk’s rivals, Synchron, a company that already has devices implanted in the brains of some humans with neurological conditions, enabling them to interact with a computer and even to tweet to Musk’s own social media platform by thought alone.
Arguably Synchron has now increased its lead over Musk’s company given that it has this year published the results of long-term safety studies for its brain-implants.
On the legal front, in August the Law Society of England and Wales released a report on the implications of neurotechnology for lawyers.
Shortly after this, the UN’s Human Rights Council resolved that it needed to find out about the implications of this technology. Meanwhile, the Chilean Neuroprotection Bill continues to make its way through the legislative process, and earlier this year UNESCO released its neurotech human rights report.
At the time of writing, the UK’s Information Commissioner’s Office is just about to release its report on issues that concern it.
There’s clearly a ramping up of neurotech-related activity which shows no sign of abating.
But what is neurotechnology?
Neurotechnologies are technologies that interact with the brain or nervous system either by monitoring brain activity and/or acting on the brain (perhaps by way of electrical stimulation) to change it.
These technologies already enable some people with neurological conditions that impair their ability to use their muscle system to control a cursor or device such as a wheelchair without a mouse or trackpad, thereby bypassing their body.
But neurotechnology does not always have to be implanted, and some people have used external brain-computer interface headsets to control drones and engage in competitive brain-drone racing. Others use them to play computer games.
Returning to therapy, already other conditions, including epilepsy and Parkinson’s Disease, are sometimes treated using neurotechnology, and neurotechnology is being trialled for depression. The hope is this list will keep growing to include dementia, schizophrenia and beyond.
This is wonderful, so why are lawyers getting involved?
There are many issues to think about, but we will focus on the possibility of manipulation of behaviour. If we assume the various billionaires who are investing in neurotech are right, then in the future there are going to be more people with bits of neurotech implanted in their brains or placed on their body via some sort of external device.
Let us now say that a person with such a device enters a shop and is considering buying something. Let us further suppose that the device ‘notices’ they are in a shop with which the neurotech device manufacturer has a commercial relationship or perhaps even wholly owns. It does this using some Bluetooth, wifi or some other similar means.
The unscrupulous manufacturer has designed the device in such a way as to electrically stimulate a part of the brain related to impulse control when the user is in one of the related shops. The device stimulates the person’s brain and causes them to act impulsively to buy something they wouldn’t have otherwise bought.
This is concerning – there seems to be a human rights dimension to this kind of manipulation as it threatens autonomy. But when the human rights framework was being set up after World War II the drafting committee wasn’t thinking about issues like brain-implant stimulation. The framework (and the national and state laws influenced by it) may now need reconsideration.
But, getting to the concerns of the unfortunate consumer, do they now have to stick to their contract with the shop?
In principle, no. The stimulation of a consumer’s brain in this way puts them at a special disadvantage relative to the manufacturer. The law in most countries has developed to prevent the predation on or exploitation of consumers suffering from a special disadvantage. Although the disadvantage in these cases is typically some sort of human frailty, like drunkenness, illiteracy, or lack of education, and the neurotech case would be a rather novel situation for the law, it would not be a stretch to include the artificial stimulation of a consumer’s brain. Legislation has also been enacted in many countries like Australia and the US, which empower courts, to set aside contracts found to be unconscionable at the time that they were made. And no well-crafted disclaimer clause by a canny manufacturer can sidestep these laws.
Contracts, manipulation, and the way forward
Assuming our hypothetical consumer was able to find out and prove that they have been manipulated (which might not have been easy), it seems that contract law can provide a remedy, but there is something deeply unsettling about the realisation that we might one day be subject to this kind of manipulation and perhaps not be aware of it.
Our aim here is not to terrify consumers or stultify developments in neurotechnology. Neurotechnology may well improve our wellbeing and our way of life, particularly if we suffer from a psychiatric or neurological condition. But, by imagining the worst, perhaps we can stimulate the brains of innovators and regulators to include or require elements in the design of emerging neurotechnology to safeguard our freedom.