The potential pitfalls of technologies like Elon Musk’s Neuralink

8 September 2020
Legal scholar warns of emerging issues for ethics and criminal law
Legal researchers consider the complex legal and ethical consequences of neurotechnologies, with a focus on Elon Musk's new device.

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

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

This brain-computer interfacing technology might be thought of as another step on the road to a merger between humans and artificial intelligence. It could enable a human to control a cursor, wheelchair or drone by mental act rather than a more conventional bodily action, like pressing a button or controlling a mouse by hand. 

But there are more complex potential consequences to consider. 

For example, if a person were to commit a crime by way of brain-computer interface, what would the ‘criminal act’ be?
Authors, Dr Allan McCay, Sydney Law School and Dr Nicole Vincent, UTS

If, at some point in the future, a person controls a drone by thought to kill someone, a court may have to respond to an unorthodox crime.

Aside from Neuralink, other so-called ‘neurotechnologies’ are available from or under development by other companies. These include brain stimulations aimed at altering psychological states, which also raises hypothetical questions about criminal responsibility.

Dr Allan McCay, who lectures in criminal law at the University of Sydney Law School, together with Dr Nicole Vincent from UTS and Associate Professor Thomas Nadelhoffer from the College of Charleston (US), have addressed the legal and ethical consequences of neurotechnologies in their new edited volume, Neurointerventions and the law: Regulating Human Mental Capacity.

Published by Oxford University Press, the book considers neurotechnologies and other 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 may result from developments in neurotechnology, not least of which is the promise of allowing those with disabilities to walk or communicate, there are many problematic issues to be considered,” Dr McCay said.

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

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


Banner image: Gertrude enjoys a drink at the Neuralink press conference on Saturday, 29 August 2020. Credit: Neuralink, via YouTube.


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