CAIDE Forum explores law in the age of “hacking the brain”

By Andrew Lim,
CAIDE Intern, Faculty of Science

With news about Elon Musk’s company Neuralink successfully implanting chips in human subjects, questions around the ethical and legal dilemmas that occur when mind meets machine are swirling.

Last Thursday, the Centre for AI and Digital Ethics (CAIDE) convened a forum on ‘Neurotechnology and the Law’, bringing together four experts from across the fields of brain computer interfaces, privacy, human rights, and consumer protection law to discuss the unique challenges posed by neurotechnology. The event highlighted CAIDE’s interdisciplinary focus, with an audience including professionals and students from across fields such as medicine, law and psychology: and topics that ranged from protections against data-driven advertising to the very framework of modern human rights.

Prof Nick Opie, a global leader in neural interfaces through work at university of Melbourne and with the company he co-founded,  Synchron, spoke at length about the distinction between neurotech implants and other areas of biotech and medical tech. He emphasised a decades-long shift in prosthetics from a focus on mechanical control to computer control, and argued that, contrary to popular belief, the next frontier of neurotech would be devices that “influence how [we’re] thinking, not [ones that] control people like marionettes.”

With that in mind, Opie highlighted the difficulties in regulating brain implants involving adaptive algorithms which continue to adapt after being implanted, which makes ensuring safety a significant issue. While to the medical mind, in his words, “your thought [can be] your worst enemy”, working to respect autonomy and safety will prove a legal minefield for regulators in years to come.

Detached from the immediate regulatory issue, Patrick Hooton, an Advisor with the Australian Human Rights Commission, took a wider view on the subject. Whilst still ultimately optimistic, reminding the audience of the “wonderful uses [for neurotech, which] will do a lot of good in the community”, he spoke of the need to build the necessary human rights guardrails to protect early adopters of this technology.

In particular, Hooton spoke of moving towards a ‘neuro-rights’ framework, based on developing new “human rights protections for the mind”. Discussing the long history of privacy thought, dividing the public and private spheres of life, he argued that new brain-computer interfaces and the ability to access mental data directly rendered many of these protections insufficient.

Not necessarily so, argued Veronica Scott, a partner at KPMG leading their Cyber Law practice. She declared that Australia fundamentally needed to start “getting our house in order”, highlighting the three years of the Privacy Act Review without draft legislation as an example of the slow pace of legislative change in this area.

Whilst she agreed with Hooton on the need to bring neuro-rights into the conversation, she outlined how a lack of “strong guidance for organisations…[and] a common framework” on existing law around data protection and privacy might pose a more immediate challenge. To her, “privacy law is cultural”, a product of historical attitudes and societal norms that necessarily needs to be suited to local contexts.

Dr Michelle Sharpe, a barrister and former chair of the Victorian Bar’s Health and Wellbeing Committee, approached the subject of neurotech from a completely different angle – that of consumer protection. Leveraging her expertise in the Australian Consumer Law, she argued that brain-computer interfaces may violate its provisions on misleading, deceptive or unconscionable conduct by making it impossible for consumers to make “free and informed decisions” about purchases.

Even ignoring the issues of external brain stimulation, she argued, brain-computer interfaces, particularly when integrated into products like games, might lead to a new onset of micro-targeted advertising nigh impossible to prove to relevant standards. She ended, however, on a more hopeful note, arguing these risks are simply the evolution of protection for consumers “cornered by a door-to-door salesman”, with the advertising now brain-to-brain instead.

That idea, then, of hope mixed with risk, was perhaps the common thread of the evening. In one of his final comments of the night, Opie declared that “data is a double-edged sword”, equally capable of solving major problems and creating great risks – so requiring careful regulation. And by bringing together technologists, lawyers and advocates, CAIDE is doing its part to help make that governance a reality.