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‘Action needed now’ to regulate new neurotechnology advances

New “brain-monitoring” tech advances could change the way criminal offenders are tracked, according to a world-first report from the University of Sydney Law School.

user iconLauren Croft
Thu, 11 Aug 2022
‘Action needed now’ to regulate new neurotechnology advances
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Editor’s note: This story originally appeared on Cyber Security Connect’s sister brand, Lawyers Weekly.

The new landmark report, commissioned by the Law Society of England and Wales and published by Dr Allan McCay, a criminal law scholar at the University of Sydney Law School, has scrutinised recent advances in neurotechnology and what it may mean for the law and legal profession moving forward.

The research paper — titled, Neurotechnology, law and the legal profession — is the first substantial overview of neurotechnology and its implications and calls for “urgent consideration” of how the new technology is to be regulated.

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Neurotechnologies are technologies that interact directly with the brain and nervous system by monitoring and recording neural activity and/or acting to influence it. Sometimes, neurotechnology is implanted in the brain, but it may also be in the form of a headset, wristband or helmet, according to the new research.

This type of technology is already being used in health settings for the treatment of patients with Parkinson’s disease and epilepsy and could be used in the future to monitor and treat schizophrenia, depression and anxiety.

But the report explains that this technology could potentially be used for the “brain monitoring” of criminal offenders or for cognitive enhancement, creating a divide between enhanced and non-enhanced humans — something that Dr McCay said needs regulation sooner rather than later.

“This tech is coming, and we need to think about regulation now,” he said.

“Action is needed now as there are already vested interests in the commercial world. We need decisions to be made at the level of society and at the level of businesses around ethics and law. We need law reform bodies, policy makers and academics to be scrutinising these technological advances rather than waiting for problems to emerge.”

However, the report also poses a number of legal questions — including whether a “brain bracelet” could monitor impulsive thoughts, track criminal offenders’ thoughts or be court-ordered to be worn at all times.

Additionally, the report revealed a number of other issues for the legal profession, such as having a right to “brain privacy” and firms potentially monitoring their staff’s brains for attention.

“To take criminal law as an example, numerous questions emerge. One might ask which bit of conduct constitutes the actus reus (criminal act) where a person injures another by controlling a drone by thought alone,” Dr McCay added.

“It seems easier to identify the relevant conduct where the defendant uses their system of musculature to control the drone by manually manipulating a controlling device such as a joystick. Moving to sentencing, would it be acceptable for criminal justice systems to monitor and perhaps even intervene on offenders’ brains by way of a neurotechnological device while they are serving sentences in the community?

“This latter question of course raises human rights concerns and there is now an important debate as to whether existing human rights protections are fit for purpose given the possibility of brain monitoring and manipulation. The human rights issues extend well beyond the criminal law into other areas of law.”

[Related: Meta cracks down on cross-platform cyber espionage]

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