In your head: How neurotech advances could change the law

Neurotechnological advances in decades to come could lead to lawyers grappling with the human rights implications of brain monitoring and manipulation, a new report commissioned by the Law Society of England and Wales has revealed.*

Launched today (9 August 2022), Neurotechnology, law and the legal profession sets out the challenges and opportunities that developments in neurotech may bring for the law and the profession, the impact they may have on the way lawyers work and on their cognitive performance.**

Such technology is already being used to treat neurological conditions such as Parkinson’s disease and to monitor employees’ attention when they are working. Neurotech is also of great interest to the military – with the prospect of cognitively enhanced cyborg super-soldiers on the horizon.

The Law Society’s report looks at the legal implications of neurotech developments including:

  • As a neuro-protection bill makes its way through the Chilean legislative process, should human rights include ‘neuro-rights’?
  • Concerns about mental privacy and surveillance because of the large amounts of brain data that neurotechnologies are likely to accumulate. Such data may give rise to new powers to manipulate people, the report suggests
  • Issues of equity and neurotechnological discrimination if some people in society are augmented with enhanced mental capacities and others are not
  • In employment law, concerns around workplace brain monitoring
  • In criminal law, could defendants claim their criminal behaviour is a result of having their neurotech device, or even brain, hacked? Could the state mandate neurotech solutions to the problem of crime? Could recidivism be reduced by brain monitoring?
  • How strict should any regulatory environment be, given the potentially enormously valuable impact of neurotechnology in treating conditions such as dementia and depression?
  • Rather than billable hours, might clients pay for billable units of attention provided by augmented lawyers of the future?

“This thought-provoking report sets out some of the many opportunities that could arise from developments in neurotech,” said Law Society of England and Wales president I. Stephanie Boyce.

“It also sets out some of the challenges that lawyers may need to grapple with now and in the future. As the report makes clear, neurotechnology could greatly improve the lives of many but also facilitate ethical failures and even human rights abuses.

“Individual lawyers and firms may wish to specialise in this field as neurotech advances lead to interesting new legal work. Law students may also benefit from studying this emerging technology during their legal education.

“With forward-thinking supported by this report, solicitors can help ensure the benefits of neurotech are maximised, and any negative consequences minimised.”

Dr Allan McCay, who authored the report, said: “This tech is coming, and we need to think about regulation. Action is needed now as there are significant neurotech investors such as Elon Musk and Meta (Facebook). We need law reform bodies, policy makers and academics to be scrutinising these technological advances rather than waiting for problems to emerge.

“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.

“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.”

Notes to editors

* Read our Neurotechnology, law and the legal profession report

** Neurotechnologies are technologies that interact directly with the brain, or more broadly the 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

To speak to Dr McCay or Dr Kion Ahadi, the Law Society’s director of strategy, futures and insights, who wrote the foreword, email press.office@lawsociety.org.uk

About the author

This report invited Dr Allan McCay to consider the emerging impacts of neurotechnology on law and the legal profession.

Dr McCay is deputy director of The Sydney Institute of Criminology and an academic fellow at the University of Sydney’s Law School. He was named by Australasian Lawyer as one of the most influential lawyers of 2021 for his work in neurotechnology and the law.

About the Horizon Scanning series

The report is the latest in the Law Society’s horizon scanning series. The series considers emerging topics and asks questions of their possible impacts on the law and legal profession, encouraging lawyers to engage in and help shape debates and legal frameworks.

The series is one part of the Law Society’s wider futures and foresight programme which – through a series of reports, films, podcasts and workshops – explores drivers of change and emerging signals, and asks questions about the future in order to help our members to prepare for longer-term possible worlds.

Find out more

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

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