SCIENCE AND TECHNOLOGY LAW: Neural Implants and Their Legal Implications

Vol. 30 No. 1

By

Stephen S. Wu (swu@ckwlaw.com) is a partner in the Silicon Valley law firm Cooke Kobrick & Wu LLP in Los Altos, California. Marc Goodman (info2011@futurecrimes.com) is the founder of the Future Crimes Institute.

Although it is not widely known, brain implants and other neural devices have been successfully used for several years to treat neurological disease and brain injuries. In the future, these devices hold the promise of enhancing our quality of life and ultimately expanding the functionality of our minds.

Some futurists and artificial intelligence experts envision credible scenarios in which synthetic brains will, within this century, extend the functionality of our own brains to the point where they will rival and then surpass the power of an organic human brain. At the same time, humans seem to have no limitations when it comes to finding ways to attack the computerized devices that others have invented.

The development of neural devices. Brain-computer interface (BCI) or brain-machine interface (BMI) devices have been under development for a long time, with some devices having already reached the market. Currently, neural devices range from toys and games to research projects and some commercialized products.

Numerous research projects are underway to develop BCI technologies and neuroprosthetic devices. For instance, researchers are looking at the cellular level to determine how brain cells can control information technology processes. Researchers are also working on devices to control prosthetic limbs. Perhaps the most common implanted neural device on the market now is the cochlear implant.

The future of neural devices. Over the next half-century, neural devices have the potential of radically enhancing the brain’s functionality and ultimately changing the human condition.

Some futurists predict that brain implants and other neural devices will dramatically expand the capabilities of the human brain. These futurists point to trends such as exponential increases in speed and power of computer processors. With the benefit of ever-more-powerful computers and the miniaturization of computing devices, brain implants and other neural devices have the potential of showing similar exponential increases in speed and power. Futurists believe that such speed and power will give neural devices the capability of greatly enhancing the functioning of the human brain.

Even the benefits of enhanced memory through the use of information technology itself would radically change our lives. Right now, our organic brain has limited memory. If we had devices directly connected to our brains that could enhance our memories, whether onboard in a brain implant or offboard in devices connected to our brains, we could learn new subjects rapidly and could recall and use information quickly. With the ever-increasing storage capacity afforded by information technology, we would not need to forget information—unless we wanted to. These technologies may significantly assist efforts to overcome diseases that cause the loss of memory.

Futurists go further than simply envisioning the use of information technology to enhance human brains. Coupled with exponentially advancing technologies, an enhanced knowledge of brain function will allow us to develop brain implants that have the speed, power, and memory to replicate the functionality of the entire human brain. Moreover, there is no reason why the brain must be limited to onboard devices. If we can connect devices to off-board devices, we will have potentially unlimited processing power and memory. In addition, the next logical step is to connect our neural devices to the Internet so that we can share, add to, and manipulate the entire world’s information.

One well-known futurist, Ray Kurzweil, has predicted that around midcentury, computers and artificial intelligence will be so powerful, humans will be able to transfer their lifetime’s worth of memories to computers and carry on their thought processes and remember information using computers so that their thinking can be independent from their organic brains.

Under Kurzweil’s view, while ever-more-powerful information technology enhances the power of human brains, artificial intelligence (AI) will also become more powerful. Exponential technology advances will permit AI to rival and then surpass human intelligence. Because brain enhancement technology and AI will use many of the same methods, the distinction between the machine-enhanced organic human beings and AIs will blur. Consequently, Kurzweil predicts that by the end of this century, humans and robots using strong AI will be functionally indistinguishable.

Information security, privacy, and cybercrime threats. Given the significant developments unfolding in the world of BCI and neuroprosthetics, we anticipate a wide variety of potential criminal threats to the human brain itself. First, people will have the means to attack neural devices. The media have publicized stories about hacking pacemakers and other medical devices. Attackers could use similar means to attack devices onboard the human body, including wireless devices, controllers for prosthetic limbs, or deep brain stimulators. Second, people have the means and the motivation to exploit neural devices. Third, the track record of the use of computers and the Internet shows that people will attack and subvert computers and devices if given the opportunity to do so.

The threat to neural devices is different in kind from the threat to computers and the Internet. All conventional attacks to computers and the Internet affected, at least in the first instance, only money, data, and other property; none of the systems involved directly touched human beings, and so their compromise did not result in the immediate physical, mental, or emotional harm to a human. The hacking of medical devices poses a different kind of threat. Hacking of a medical device could result in immediate death or injury to a human. The use of neural devices entails an even greater risk than other medical devices. Attacking a neural device used to enhance a human’s memory may have the effect of wiping out some or most of someone’s memory or thought processes.

The legal issues of brain implants and neuroprosthetics. Companies that sell and provide services to support neural devices may have unique access to private information stored in the human brain. Even the process of obtaining meaningful informed consent to the collection of data from an individual poses significant challenges. Device manufacturers will need to have data security policies to establish administrative, physical, and technical controls over the manufacture of neural devices, as well as privacy policies to address information practices relating to sensitive information and systems.

Federal and state laws may someday impose security and privacy requirements on manufacturers of neural devices and the companies that service them. Litigation may arise from privacy torts and the violation of security and privacy requirements in statutes and regulations.

How neural devices will change lawyers’ practices. First, as neural devices become commonplace, practitioners will need to learn more about the technology. This step is the foundation for all science and technology law practices. Second, lawyers should help legislators and groups such as the Uniform Law Commission to shape policy in the area of neural devices. Finally, lawyers will need to recognize where representing clients concerning neural devices will simply involve applying old law and methods to this new technology, and where new methods will be necessary.

 

ABA SECTION OF SCIENCE and TECHNOLOGY LAW

 

This article is an abridged and edited version of one that originally appeared on page 14 of The SciTech Lawyer, Winter 2012 (8:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221 or visit www.thescitechlawyer.com.

WEBSITE: www.americanbar.org/scitech

PERIODICALS: The SciTech Lawyer, quarterly magazine; Jurimetrics, quarterly scholarly journal; SciTech E-Merging News, quarterly electronic newsletter featuring up-to-date substantive practice perspectives and news on Section activities.

CLE AND OTHER PROGRAMS: The Section offers a variety of CLE and learning opportunities through both webinars and in-person sessions throughout the year.

BOOKS AND OTHER RECENT PUBLICATIONS: Data Breach and Encryption Handbook; Foundations of Digital Evidence; Information Security and Privacy; Technology Licensing: A Practitioner’s Guide.

 

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