Legal scholar warns of emerging issues for ethics and criminal law

On Saturday, Elon Musk announced that one of his companies, Neuralink, had hadimplanted an interface (a kind of computer chip) about the size of coin intothe skull of a pig named Gertrude. Neuralink researchers wirelessly linked thebrain to an external computer, to establish a connection between the two.

Whilst the device is not yet approved for implantation into a human brain, thecompany also announced that it had obtained US Food and Drug Administrationapproval to expedite the regulatory process toward this goal.

This brain-computer interfacing technology might be thought of as another stepon the road to a merger between humans and artificial intelligence. It couldenable a human to control a cursor, wheelchair or drone by mental act ratherthan a more conventional bodily action, like pressing a button or controllinga mouse by hand.

But there are more complex potential consequences to consider. For example, ifa person were to commit a crime by way of brain-computer interface, what wouldthe ‘criminal act’ be? If, at some point in the future, a person controls adrone by thought to kill someone, a court may have to respond to an unorthodoxcrime.

Aside from Neuralink, other so-called ‘neurotechnologies’ are available fromor under development by other companies. These include brain stimulationsaimed at altering psychological states, which also raises hypotheticalquestions about criminal responsibility.

Dr Allan McCay, who lectures in criminal law at the University of Sydney LawSchool, together with Dr Nicole Vincent from UTS and Associate ProfessorThomas Nadelhoffer from the College of Charleston (US), have addressed thelegal and ethical consequences of neurotechnologies in their new editedvolume, Neurointerventions and the law: Regulating Human Mental Capacity.

Published by Oxford University Press, the book considers neurotechnologies andother neurointerventions, and answers questions like:

• can employers make their employees use neurotechnologies to monitor brain activities?
• if people start committing crimes by way of brain-computer interface, what is the criminal act?
• should legal systems medicate those who break the criminal law, for example by using anti-libidinal drugs for sex offenders?
• what if there was a brain implant that could detect the neural patterns associated with impulsive aggression, then issue a warning to the person that they may be on the cusp of a violent outburst, or even automatically act on their brain to calm them down?

“Whilst there is an enormous range of very positive consequences that mayresult from developments in neurotechnology, not least of which is the promiseof allowing those with disabilities to walk or communicate, there are manyproblematic issues to be considered,” Dr McCay said.

“If companies like Neuralink and a host of others continue along theirtrajectories, the law may have deal with strange new legal and ethicalproblems involving brain technologies.

“It is therefore vital that we address the legal, social and ethicalramifications of neurotechnologies now – before it’s too late.”

Image: Gertrude enjoys a drink at the Neuralink press conference on Saturday,29 August 2020. Credit: Neuralink

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