The Brave New World of Neurolaw

One of Australia’s leading neurosurgeons has told a ground-breaking panel discussion on biotechnology and neuro-law, that it’s not inconceivable that within the next two decades, scientists will find a way to connect the human brain wirelessly to the cloud.

Professor Jeffrey Rosenfeld AC, OBE, a Senior Neurosurgeon at The Alfred Hospital was addressing a Law Society of NSW Thought Leadership panel discussion looking at what happens when neuroscience and biotechnology intersect with the law.

Professor Rosenfeld’s own research interests include improving the outcome for patients with traumatic brain injury and restoring sight to blind individuals using bionic vision, a wireless electrode interface with the brain.

Joining Professor Rosenfeld on the expert panel was:

•    Facilitator, Dr Nicole Vincent, Senior Lecturer, Faculty of Transdisciplinary Innovation, University of Technology Sydney
•    Legal theorist, Dr Allan McCay, Lecturer, Criminal Law, University of Sydney Law School
•    Behaviour change expert, Kathy O'Donoghue, Co-CEO, Kantar Public Australia

According to Professor Rosenfeld, brain computer interfaces have existed in a simplified form for more than 30 years but with recent advances in electronics and the miniaturisation of transistors and wireless technology, things are moving ahead more rapidly than they have in the past.

In July this year technology entrepreneur, Elon Musk, unveiled a plan to implant paralysed patients with electrodes to allow them to work computers. Musk’s start-up, ‘Neuralink’, aims to develop a data transmission system between people and computers and is betting that millions of people will eventually elect to become cybernetically enhanced. 

 “Elon Musk’s idea of connecting the brain with multiple electrodes or electrical interfaces with a computer is already happening,” Professor Rosenfeld said.

“With current computer-brain interfaces it’s possible for a paralysed person to operate a robotic arm – you’ve got electrodes going into the motor part of the brain and the person, with their thoughts alone, can move the robotic arm to pick up a glass of water so they can drink from it.

“Just like in ‘The Matrix’, what needs to be done now is to convert that into a completely wireless interface so that you don’t have cables and plugs coming out of the head. 

“Elon Musk’s idea is that he will connect to many more nerve cells than we currently can and in fact that we would connect to the cloud and download information correctly into the brain and upload information from the brain.”

Professor Rosenfeld said tech companies are also starting to think about putting implants in the brain to affect human memory and it’s already been done in animals.

He went on to explain how a memory chip has been transferred from a rat that had learnt how to navigate a maze to another rat that didn’t have that memory - the memory chip then activated those memories in the naïve rat. 

“If it’s already being done in a rat’s brain it won’t be long before it’s being done in humans as well,” he added.

Other questions posed to the panellists included:

•    How will advancements in fields like neuroscience, biotechnology and behaviour change challenge our laws and legal system?
•    As we set out to change human brains and behaviour, is there still room for the assumption that individuals possess free will?
•    ‘The genes made me do it!’ Should a genetic predisposition to crime mitigate sentencing?
•    What are the implications of using research in psychology and data analytics to address social issues and who decides if it is ethical?

President of the Law Society of NSW, Elizabeth Espinosa, said the ability of neuroscience to ‘look inside’ the brain, with sophisticated brain imaging and diagnostic techniques, makes the field particularly compelling for criminal lawyers.  

“It was inevitable that lawyers were going to take an interest in neuroscience,” she said.

“It is relevant to the concept of culpability as well as the issue of treatment versus punishment.

“Lawyers are intimately involved in questions around personal responsibility; mental states; and what factors might limit or impair a person’s control over their own behaviour.  More lawyers are arguing that the emerging discipline of neuroscience has answers to these questions, or at least something important to say.”

Professor Rosenfeld believes there is an urgent need for lawyers to work very closely with the medical and neuroscience professions to formulate improvements in the law that would address some of the issues posed by advances in neuroscience.

“We have privacy issues. Who owns the data? Who is going to use the data? How is it going to be used? Is it  someone’s private thoughts or patterns or what happens if someone hacks into that apparatus?” he said. 

“I think the law has to be first informed about what the breakthroughs are, where we are heading and where the law needs to go to keep up with the rapid pace of advances in neuroscience  - I don’t think the law is keeping up necessarily at the moment.”

Sue Finn | Media and Public Relations Manager
The Law Society of New South Wales
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