Person,or property? Brain-Computer Interface technology and the law

Abstract

Discussions of robotics and the law are often limited to ‘what technology harms humans’, rather than considering what it means when ‘humans harm technology’. This article looks to advancements of Brain-Computer Interface (BCI) technology to argue how this can be an extension of individuals and therefore causes complicated legal questions that are yet to be resolved. This article identifies the law and explains BCI technology within the context of Australian criminal, property, negligence, personal injury and civil procedure laws. These areas of law need to be read with a clearer understanding of the way that technology is advancing. Currently these areas are not sufficiently prepared to respond to questions of BCI technology and where the human body begins and ends.

It is a sunny day, and a man stands on a street corner, leaning on a stick. He doesn’t notice that someone is approaching him. Suddenly, the newcomer stumbles – the two people collide – both are unharmed, but the stick on which the man was leaning is now broken. No legal issues are raised by either person. There are no threats of getting the police (or even a lawyer) involved. No person was physically hurt, and the stick was arguably worthless. The two people brush themselves off, the newcomer apologises, and they go their separate ways.

It is a sunny day, and a man stands on a street corner, leaning on pair of crutches. The man has previously broken his leg and needs the mobility aid to be able to move and function in the world. A newcomer stumbles – the two people collide – no physical injuries, but the crutches are broken. The crutch itself is a piece of property, and is relatively cheap, but the effect it has on the man is exacerbated because – in addition to the pain of the collision – he can now no longer walk unaided.

It is a sunny day, and a blind man stands on a street corner, holding a visual mobility cane. A newcomer approaches, and deliberately takes the cane and breaks it. The financial value is relatively cheap, but the full nature of the action is exacerbated by the condition of the man on the corner, the intention of the newcomer, and the importance of the damaged object to the man. In considering the nature of this incident, the connection between the owner and the damaged object must be given full weight – as the walking stick is property, but it has also become an extension of bodily synthesis. ¹

So, what then if the damaged object was not regarded as property but a part of the person? There are discrepancies and gaps between law and advancements in prosthetic technologies. It is argued that ‘[l]egal responses to damage [of a prosthetic] that treat it simply as property damage may be inadequate to fully reflect the wrongdoing, or to compensate that harm.’ ² This challenge to a conventional application of law is compounded by the advancements and integration of the technology within the human body, explained by futures theorist Luke Robert Mason as:

Today’s prostheses are increasingly integrated with the body and can often be activated by electrical signals from muscles, with more radical examples including direct skeletal prosthesis or ‘osseointegration’ (i.e. a prosthetic that is permanently fused to the bone marrow of the amputee.) … As such, the law might need to consider classifying interferences with prosthetic devices in a similar way to assault, battery and invasions of bodily integrity. ³

These issues are distinct from previous discussions of technology, robotics and liability that focus predominately on the technology as the perpetrator. ⁴ Instead, this article takes seriously the legal nature of Brain-Computer Interfaces (BCIs) as a respondent to the actions of others. This article explores the specific legal issues raised by the human therapeutic use of BCI as a technology is acted upon, rather than as the actor.

Pop culture and science fiction fuel a view of technology as a threatening actor or object. Science fiction from Asimov’s I, Robot ⁵ and Arthur C Clarke/Stanley Kubrick’s 2001: A Space Odyssey ⁶ through to The Matrix, ⁷ and The Terminator ⁸ all feature intriguing plots centred around the actions of robots, AI and technology more generally on humanity. The common theme is that technology acts upon the human, therefore this creates a demand for the law to respond to how we treat the robot as an actor. ⁹ Academic literature reflects these dystopian fears and looks to the legal ramifications of what happens when a person is harmed by technology. This includes discussion of criminal liability for intentional, unintentional and negligent offences committed by robots and AI; ¹⁰ questions of liability with autonomous vehicles; ¹¹ the moral accountability of machines; ¹² and less criminal matters such as the intellectual property implications of artificial intelligence and technology. ¹³ While these discussions focus on how ‘others are affected by the technology’, this article seeks to explore liability and implications when the ‘technology is affected by others’.

Brain-Computer Interfaces

Brain-Computer Interfaces (BCIs) are devices that interact directly with the central human nervous system ‘to record or stimulate activity – or both’. ¹⁴ The ability to record, decode and replicate neural impulse is limited ¹⁵ but research and development has continued recently to improve the ability to facilitate this more accurately. ¹⁶ There are competing definitions of BCI as the technology has developed over time, however overall a BCI will refer to a connection between the brain and some sort of device, it can read and then instruct the artificial device. BCIs can also be called Brain-Machine Interfaces (BMIs) and have common overlap with Neural Interface. ¹⁷ Neural Interfaces is a more general term that encompasses any technology which facilitates communication between the central nervous system and systems beyond the brain, whereas BCIs will communicate with external devices, computers and machinery. ¹⁸ The differences between these are not always clear; some organisations stipulate that Neural interfaces are internal and invasive, whereas BCIs are the external and wearable equivalents, or the neural interface is the internal component of the BCI. ¹⁹ Internal devices are arguably more able to accurately capture the neural impulse, however BCIs can exist as devices that are purely internal, purely external or a mixture of the two. ²⁰ For this article we refer to BCI’s as the holistic BCI system which incorporates both the internal and external elements of the system.

According to Wolpaw and Wolpaw, BCIs can be broadly attributed to a set of different functions: replace, restore, enhance, supplement or improve. ²¹ Devices may replace or restore natural output that has been lost as, for example:

a person who can no longer speak might use a BCI to type words that are then spoken by a speech synthesizer. Or a person who as lost limb control might use a BCI to operate a motorized wheelchair. … A person with spinal cord injury whose arms and hands are paralyzed might use a BCI to stimulate the paralyzed muscles via implanted electrodes so that the muscles move the limbs. Or a person who has lost bladder function due to multiple sclerosis might use a BCI to stimulate the peripheral nerves that control the bladder ²²

Key uses exist to aid treatments for epilepsy, ²³ sleep difficulties ²⁴ or memory loss, ²⁵ or to aid processes such as meditation. ²⁶ Memory-focused BCI devices are an interesting example of closed-loop systems because they can improve memory connections, overcome cognitive impairments and combat Alzheimer’s disease. ²⁷ These technologies are examples of BCIs that serve to restore, replace and also ‘improve’. ²⁸ One of the most prolific BCI devices is the bionic ear (or cochlear implant), ²⁹ and there are numerous other devices in various states of development. ³⁰ For the purposes of this article, BCIs are mostly considered through their use to ‘replace’ or ‘restore’ insofar that, without these devices, there is an underlying condition that is left vulnerable in the event of damage to the BCI. ³¹

With such integration of BCI with the human brain and nervous system, it is natural to see new questions about what happens if someone damages a person’s BCI – such as a memory device, retinal implant, bionic limb, or some other form of BCI – noting that ‘as new types of prosthetics become available, and the integrations between man and machine become more intimate, the traditional distinctions the law makes are being questioned.’ ³² This article takes the position that under certain circumstances, BCIs should be regarded as an extension of the human being so damage to the BCI will no longer be regarded as property damage but personal injury. ³³ Extension of the current law in this way will occur if the courts regard the BCI as an integral part of the individual and may award compensatory damages for personal injury that the individual has sustained as a result of harm to the BCI.

Recognising BCIs as part of a person is supported by scientific research. ³⁴ An experiment published in 2022 by researchers at the University of Tokyo ³⁵ looked to the expansion of Peripersonal Space (PPS) by robotic limbs. This research has been commented on by others as showing how the line between human and prosthetic can blur, with a:

participant’s ‘peripersonal space’ (the area around our bodies which we perceive as being our personal space) extended to include the area around the virtual robotic arms. … Once the participants learned how to use the virtual system, they reported feeling like the virtual robotic arms had become their own extra arms and not just extensions of their real arms or feet. ³⁶

This understanding is grounded in established experiments and theories in cognitive science and neuroscience around ‘tool embodiment’, ³⁷ bodily synthesis, ³⁸ and body schema. ³⁹ These experiments have historically been tied to robotics and simpler limb substitutions, and at present various researchers are exploring the potential of BCIs. ⁴⁰ Beyond neuroscience, key theories of agency are critical to understanding the nature of BCI. Building off social science perspectives of agency, ⁴¹ these questions can be expanded when applied to BCI. ⁴² In the context of BCIs these questions of prosthetics and agency are critical as ‘BCI-mediated behavior and ordinary behavior provides a very different sense of agential control.’ ⁴³ This relationship between the individual and the BCI has been expressed as a ‘radical symbiosis’, that is, the ‘intimate co-existence of two species for mutual advantage’. ⁴⁴ To this extent, these neuroscience questions of embodiment and synthesis appear to step further when applied to BCI because it is also a question of symbiosis. ⁴⁵

Law’s response to technology

As technology advances and becomes more embedded within daily life and culture the law is often called upon to respond. In a more sensationalist setting, this is all too clear in the dystopian fears of technology that can stem from science fiction (such as the films mentioned above) and may lead to actual legislative responses. Cloning laws were created as much in response to debates stemming from books and films as they were to the cloning of Dolly the sheep; ⁴⁶ and the emergence of space law, the Corpus Juris Spatialis, was a response to ‘possible futures’ popularised through science fiction. ⁴⁷ But legislative responses to technology can also be banal. For example, in 1971 the case of Thornton v Shoe Lane Parking ⁴⁸ was heard by the England and Wales Court of Appeal to assess the impact of automated ticket machines upon contract law. This looked to the effect of an exclusion clause in a parking contract when the ticket had been produced by an automated machine, rather than the human ticket office that was central to the legal fiction in this type of contract. ⁴⁹ In Thornton, technology meant that the driver was given the ticket before becoming aware of the contract term written on the ticket – as such they had no way to return the ticket to the automated machine and refuse the offer. ⁵⁰

For Thornton there was a body of contract law to draw upon. However, those common law approaches were not applicable as the court determined that ‘[n]one of those cases has any application to a ticket which is issued by an automatic machine.’ ⁵¹ To resolve this, the court needed to return to the basic concepts of contract law rather than reliance on common law cases relating to tickets. The court determined that the key factor in this contract was ‘time’ – insofar that, at the moment of acceptance (when the machine thrust the ticket at Mr Thornton), there had not been an opportunity to see and assent to the terms on the ticket. As such, he could not have agreed to terms that he did not know simply by taking the ticket and, by extension, the exclusion clause was not incorporated. While it seemed to be a situation complicated by technology, it could be simply resolved by considering the core principles of the contract law – such as time – rather than treating it as a new legal field requiring dedicated new principles. When matters appear complicated by technology, it is important to not get distracted by the hype and assumption that new technology requires new law. Starting with core principles can be a way to resolve and simplify a complex legal issue. This article attempts to do that here with BCIs.

BCI and complications of liability and categorisation

It is a sunny day, and a man stands on a street corner, holding some groceries. He doesn’t notice that someone is approaching. Suddenly, the newcomer stumbles – the two people collide – both people are physically unharmed, but the man does not get up as quickly. He appears confused. This man was fitted with a Hippocampal cognitive prosthesis. ⁵² Prior to the collision, the device provided stimulation to certain parts of his brain in order to facilitate his memory and combat his advancing Alzheimer’s. ⁵³ When he fell to the ground, the prosthesis was damaged. His brain still worked of course (the device wasn’t some sort of off-switch) but over the course of his day certain parts of his memory would become elusive, and drift away, and the cost to repair the prosthesis would prove to be beyond his income. This collision did raise legal issues. The newcomer had collided with the man, and this led to the device becoming damaged. It was more than just financial damage though – nor could it be categorised as something emotional or even psychological (at least not in the way the law currently would recognise). The two exchanged information, expecting that a lawyer may need to be consulted: the newcomer – assuming they could see the device damaged in some way – would think it was simple property damage, the man on the street corner would be unsure what to think.

In the development of BCI, similar circumstances could occur where the existing law in relation to property damage will not apply to the harm inflicted on the BCI – therefore this article suggests that an understanding of foundational concepts of law are essential. An analysis of how property, criminal, and personal injury law are raised by this matter assists in seeing the emerging gaps posed by the technology.

If a BCI is damaged or destroyed by another individual, this could attract liability under several laws that apply to harm to the person. If this is wilful, then it may be a criminal matter – however, the action could be either criminal assault to the person, ⁵⁴ or property damage. ⁵⁵ If not wilful, then it may be negligence – but remains a form of ‘harm’ that is split into harm to the person and harm to property. ⁵⁶ Each situation will require a clear cause of action to appropriately remedy the harm suffered.

Harm to property or person?

This article argues that it is unclear where the distinction can be drawn between harm to property or harm to a person when the matter involves BCIs. While the device (as property) may have been physically damaged, the ramifications can be far reaching as the person is harmed due to a failure of the device. When BCIs (used to replace and restore) are damaged, then the person will revert back to their underlying condition, injury or illness. As such, the damage to the object is far more insidious as this can rob them of physical and mental functioning in the same way as damage to the human body. However, these complications are not easily resolved at law.

Property damage, where real or personal property is damaged or destroyed through the actions of another, is definable as damage to everything that is not a person. Negligence requires a duty of care, a breach of that duty, and clear causation. ⁵⁷ Under negligence, property damage is treated through restitution for the loss of value of property, being the cost of repair, ⁵⁸ the diminution in value ⁵⁹ or total replacement. ⁶⁰ However, these remedies may not fully capture the harm suffered to the person because body ownership transfer, the sensation of owning the BCI as an integral part of the person’s body, can occur such that the person experiences the injury to the BCI in the same way as their biological equivalent. ⁶¹ Amputees have been quoted as stating, ‘Over the years you just get used to them. It's just like a part of your skin’ and ‘I've never thought of it. I just think that it's my arm’. ⁶² Given this intimate connection between the person and the BCI, Mason suggests that the BCI should be considered ‘part of the "living self" – a body that is otherwise protected by assault, battery, rather than by laws protecting against property damage’. ⁶³ If harm to the BCI was instead to be seen as a personal injury claim, then there would be an increased scope of remedies – including consequential damage, including economic and non-economic loss, that is, past and future hospital and medical expenses, gratuitous services, past and future loss of earning capacity and past and future non-pecuniary losses such as pain and suffering, loss of amenities or enjoyment of life and loss of expectation of life. ⁶⁴ These remedies would more fully compensate for harm to the BCI that is integrated with the human brain or body –howsoever the PPS is drawn.

Personal injury focuses on the impairment of a person’s physical or mental condition and the consequences. ⁶⁵ According to Justice Windeyer, there are three ways in which a personal injury can give rise to damage:

First, it may destroy or diminish, permanently or for a time, an existing capacity, mental or physical: Secondly, it may create needs that would not otherwise exist: Thirdly, it may produce physical pain and suffering. ⁶⁶

Personal injury claims can also be governed by specific legislation that alters the civil procedure requirements. In Australia, various legislation on personal injury and civil liability set out clear procedural requirements to exchange information and attempt to reach a settlement. ⁶⁷ Only if these steps are followed and no settlement is reached can an individual then commence proceedings. ⁶⁸ This legal process was designed to reduce the burden of litigation by requiring parties to negotiate prior to any formal litigation. ⁶⁹ This process also significantly reduces the limitation period in which it is possible to bring forward a claim, ⁷⁰ and therefore understanding the classification of the damage to a BCI is critical to understanding the appropriate civil procedure process and time restrictions of which an injured party will need to be aware. The novel duty of care in relation to pure psychiatric injury is developing. ⁷¹ This shows that development in personal injury actions is not only restricted to the person’s physical components. There is a distinct possibility that the integration of BCIs with the biology of humans will, at some point in the near future, also be recognised as the person and harm to the BCI will be regarded as personal injury. The damage element of negligence must be damage recognised in law. It is not unreasonable to expect that a court will regard such an integrated BCI as constituting the person rather than a tool.

The concept of ‘competent control’ of tools is an area of personal injury that may complicate this extension of law into BCI. The courts regard artificial devices as tools requiring ‘competent control’ and these include cars, ⁷² dredging equipment, ⁷³ fishing trawlers, ⁷⁴ firearms ⁷⁵ and ski resort lifts. ⁷⁶ However, each of these devices is independent from the human being and needs to operate in conjunction with the human. Unlike these devices, a BCI – a tool that replaces or restores – will function as an integral part of the individual’s body, directed by neural impulse, sensing and communicating with the brain like a human biological part. There is not the same disconnectedness that there would be with cars, dredging equipment, fishing trawlers, firearms, ski resort lifts and the like. The integration of the BCI with the human brain and nervous system means the BCI moves beyond being a tool. It can be argued that case law which looks to the development of this technology will recognise this and engage with core concepts of what personal injury entails at a basic level – that personal injury is impairment of a person’s physical or mental condition.

Criminal

For criminal actions, harm to the BCI may similarly be seen as personal injury, rather than property damage. For harm to a person’s BCI to be regarded as criminal assault, ⁷⁷ the BCI will need to be regarded as part of ‘the person’. In Australia, the legislation does not overtly limit what constitutes a person and neither does interpretation legislation. ⁷⁸ Accordingly, there is a possible path to argue that a BCI which is integrated with the brain and body of an individual would arguably constitute the person who has been assaulted. ⁷⁹

Aggravating factors

Because of the importance of the BCI, the court may consider this to be an aggravating factor that could increase the severity of the action, or even negate defences relating to motive or foreseeable damage. An action that damaged a BCI could be more than merely criminal assault, ⁸⁰ as the nature of the BCI could raise it to a serious assault. ⁸¹ This aggravated type of assault captures actions in specific circumstances and against certain types of individuals, such as police, the elderly, or an unlawful assault on ‘any person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device'. ⁸² The examples listed in current legislation include overt reference to artificial limbs, but it will be difficult to decide how wide this definition of ‘device’ will reach, ⁸³ and the importance of the assailant’s knowledge of the device and/or impairment. This also would have implications for the operation of the ‘eggshell skull rule.’ This is the principle that the assaulter or tortfeasor ‘must take his victim as he finds him'. ⁸⁴ In criminal law, this is a key factor for intention and motive where it is stated that

a person is not criminally responsible for … an event that … the person does not intend or foresee as a possible consequence … [h]owever … the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality. ⁸⁵

This has been expanded in recent years in Queensland to also include discussions of artificial additions to the body. The court in R v Steindl indicated that:

when the function of an item or such device is the direct result of medical or surgical intervention to ameliorate a natural weakness or constitutional abnormality, the result should be regarded as an ‘abnormality’ for the purposes of s 23(1A). ⁸⁶

In that case, the ‘defect weakness or abnormality’ that displaces intention has been discussed to include surgical implants including lenses, transplanted organs, or even aspects such as shrapnel. ⁸⁷ It is our view that this definition aligns BCI technology designed to ‘replace’ and ‘restore’ as they are used to restore the person to a natural output. The use of BCIs would be the result of ‘medical intervention’ and therefore it is likely that damage to an individual with a BCI may indeed displace common stances on intention, motive and knowledge of the victim.

Conclusion

Discussions of robotics, assault and injury are deeper than just the fear of how ‘humans are injured by the technology’ – as these questions of liability and legal paths are starkly uncertain when it comes to how ‘technology is injured by humans.’ BCIs should be regarded as part of the individual rather than property because it can more accurately capture the harm being caused. Regardless of the position that is taken, more legislative certainty (in any jurisdiction) is likely needed to address questions of the correct legal paths. This includes questions such as whether this is personal or property damage, the level of criminal intent, and if the technology could even be an aggravating factor in sentencing. Advancement in the technology means that BCIs can enable the individual to ‘feel’ in a similar way as with a biological limb and the individual’s perception that the BCI as part of them, part of their body through body ownership transfer. As a result, the courts need to regard the BCI as an integral part of the individual.