Neurotechnology represents a significant emerging frontier within a technology intensive society. This field encompassing technology related to the brain, the nervous system, and their functions holds immense promise, yet its legal landscape remains largely undefined. Legal professionals must consider the profound legal implications of neurotechnology and its potential impact on the practice of law itself. This analysis explores these critical themes.
Legal practitioners are tasked with staying current on evolving industry trends such as neurotechnology. Its intersection with developments like artificial intelligence and automation could precipitate even more transformative shifts for attorneys. Readers can consult the Legal Trends Report to gain further insight into the current state of the legal industry.
Defining Neurotechnology
Neurotechnology serves as an umbrella term for any technology that accomplishes one or both of the following:
- Monitors or assesses activity within the brain or nervous system.
- Directly influences activity within the brain or nervous system.
Contemporary applications of neurotechnology for measuring brain activity are numerous. Examples include electroencephalograms (EEGs), which use electrodes placed on the scalp to measure the brain’s electrical activity, and magnetic resonance imaging (MRIs), which track changes in cerebral blood flow.
Furthermore, neurotechnology possesses the capability to modulate neural activity. Deep brain stimulation, for instance, is employed to reduce tremors associated with Parkinson’s Disease. Spinal cord stimulation is utilized in the management of chronic pain. Transcranial magnetic stimulation (TMS) involves placing an electromagnetic coil against the scalp to treat symptoms of depression and enhance mood.
The most advanced neurotechnologies are still under development. This category includes brain computer interfaces (BCIs), such as those being designed by Neuralink. Neuralink aims to create a neural implant enabling users to communicate with and potentially control external computers. Other entities are also actively designing BCIs, with long range objectives of leveraging these devices for cognitive enhancement or specialized vocational training.
Impact on the Legal Field
Neurotechnology is a developing field presenting both prospective benefits and potential concerns for the legal industry. It is poised to influence the methods by which lawyers practice law and will also carry broader legal ramifications for society.
Lawyers, who often face a demanding and stressful occupation, could benefit from neurotechnology’s therapeutic applications. In a profession marked by elevated rates of depression, the deployment of technologies like TMS could have a considerable positive impact and potentially save lives. Neurotechnology may also enable many attorneys to continue practicing despite conditions that were previously debilitating, such as Alzheimer’s or Parkinson’s Disease.
However, the prospect of neurotechnology offering cognitive enhancement to boost legal professionals’ efficiency and effectiveness raises difficult questions. While many attorneys would welcome such enhancement, it could generate pressure on all practitioners to adopt these technologies, regardless of individual preference. Absent clear guidelines or regulation in this area, neurotechnology could inadvertently escalate the professional demands placed upon lawyers.
Neurotechnology could introduce other professional pressures for attorneys. The technology might become capable of measuring an attorney’s degree of focus on a task. A recent report for the Law Society of England and Wales introduced the concept of lawyers transitioning from hourly billing to charging for “billable units of attention.”
Societal Legal Implications of Neurotechnology
Beyond the legal profession itself, neurotechnology presents profound legal implications for society.
Criminal Law, Law Enforcement, and Legal Settings
In specific circumstances, neurotechnology can already access a person’s mental activity to the extent that their thoughts and impulses may be discernable. This technology might be used to determine a criminal defendant’s competence to stand trial. One American company has even marketed a headset it claims will improve criminal interrogations by monitoring a suspect’s brainwave activity during examination.
The capacity to ascertain whether an individual is being deceptive is clearly valuable in legal contexts such as trials or depositions. Yet, questions persist regarding the reliability of this evidence and how its use will align with a defendant’s right against self-incrimination. These legal conflicts are likely to define jurisprudence in the coming decades.
Consumer Law
Advertising and marketing constitute a significant area of potential commercial application for neurotechnology. The use of an individual’s internet searches for these purposes is already standard practice. The wealth of personal data obtainable from brain activity holds the potential for even greater commercial utility.
For example, consider a brain computer interface in the form of a neural implant or headset used for gaming. The associated software could gather the gamer’s neural data for targeted advertising, perhaps identifying the optimal moment to prompt an in app purchase. Furthermore, companies could potentially sell this neural data to one another, mirroring current practices with other forms of consumer information.
It remains uncertain whether existing consumer law offers sufficient protection against these strategies. Nevertheless, certain states are enacting legislation to expand privacy protections to neural data. Future legal disputes, including potential class action lawsuits, are foreseeable in this domain.
Employment Law
Employers may begin to view neurotechnology as a tool for improving productivity and supervising employee performance. However, employers gaining insight into workers’ emotional and cognitive states through technology would likely constitute a severe invasion of privacy. If these neurological insights are then utilized to inform decisions concerning workplace discipline, promotion, demotion, or other significant employment actions, it will open up a complex array of potential employment litigation scenarios.
Privacy Law
All these scenarios have enormous consequences for an individual’s right to privacy. Even if neurotechnology proves effective for interrogations, should its use be permitted? Is there a need for regulations, or even outright prohibitions, on the use of this technology for workplace monitoring and advertising? Furthermore, regarding the neural data collected with this technology, the fundamental question of who controls that data must be addressed.
Ethical Considerations and Privacy
Numerous ethical considerations surround neurotechnology. Potential invasions of privacy represent one concern. Another involves the potential ability to influence an individual’s brain function and possibly impede their freedom of thought, decision making, and action.
Concerning privacy, Nita Farahany, a leading neurotechnology expert, has voiced concerns. Farahany observes that the presumption in American law is that mental privacy is protected. Yet, she notes that few laws specifically safeguard neural data. This disparity between legal assumptions and reality will require resolution in the coming years.
Ethical implications also arise with the prospective use of brain coprocessors—BCIs integrated with artificial intelligence. These devices could potentially be compromised via hacking, leading to cognitive impairment or even the manipulation of a person into performing certain actions. Such coprocessors would likely necessitate stringent regulation and robust security measures.
The Mandate for Privacy and Security Frameworks
Given that privacy and security are paramount concerns regarding neurotechnology, legal and industry frameworks must be established to address them. Lawyers should assume a leadership role in developing these structures.
Current Regulation of Neurodata Privacy
Chile stands as the only country that has enacted laws specifically addressing privacy rights for neural data, known as neurorights. In 2021, the Chilean government adopted a constitutional amendment protecting brain activity and data. In 2023, the Chilean Supreme Court affirmed neurorights by ordering a neurotech company to delete brain data collected from a former senator.
Some United States jurisdictions have implemented their own neurorights policies. In April 2024, Colorado enacted legislation protecting the privacy of neural data. Later that year, California passed an amendment to the state’s consumer privacy law, extending protection to neural data.
The Continuing Need for Regulation and Best Practices
Regulation of neurodata will undoubtedly expand to additional US states and other countries over time. This necessitates that neurotech companies and their legal counsel prioritize industry standards and best practices for neurotechnology. These standards could serve as foundational frameworks for future laws.
Some proponents advocate for industry self regulation to be favored over governmental legislation. The underlying concern is that excessively stringent regulatory oversight could hinder innovation in the core technology.
Conclusion
While neurotechnology is already generating many prospective opportunities for the legal profession, the most substantial breakthroughs are yet to come. These advances will likely present certain challenges for the legal landscape as society adapts to the new technology. Neurotechnology will bring both potential rewards and perils for the legal profession.
Neurotechnology is but one of many current trends attorneys must monitor closely. Read the latest Legal Trends Report from Human&Legal to uncover other significant developments impacting the legal industry.
