By Anna Elizabeth Melo
With every medical technological innovation there is the anticipation of life changing opportunities and societal advancement as well as the fear of unintended risks and consequences. These considerations are ever-present with the concept of implanting a brain-computer interface directly on the cortex of the human brain, with potential uses that span far beyond medical necessity. This device is what Neuralink set out to create in 2016.[1]
The company, headed by Elon Musk, proposed that its product would eventually restore vision (including congenital blindness), would enable individuals with spinal cord injuries or motor issues to regain mobility and speech, and would reduce or even halt the progression of Alzheimer’s disease and dementia.[2] The procedure itself entails a neurosurgical placement of a device mimicking the capabilities of the axon and dendrite in a neuron (transmitting and processing neural signals).[3] Micron-scale threads replete with electrodes attach to the device, permeate the brain, and connect the device with the targeted region of the brain for ascertaining neuronal communications.[4]A robotic surgical placement device has been specially designed for placement of these threads and possesses the ability to detect target regions of the brain while avoiding placement in surface vasculature.[5]The device requires a charger that is capable of wirelessly charging the battery from outside of the body.[6]
While there have been experiments done by the company on animal subjects, including highly publicized demonstrations of a macaque capable of playing digitized Pong with its brain alone, the Federal Drug Administration (FDA) has not yet cleared the technology for human trials.[7]Musk has stated that he is confident that the first Neuralink implant will be placed into a human brain within the next six months, where the results of its efficacy on various conditions may be seen in 2023.[8]
While the idea of implanting a communicative brain-computer interface appears futuristic, it is already being done. A competitor to Neuralink, Synchron, was able to secure FDA approval for human trials first in this area in the United States in July of 2021.[9]While there are restorative brain function promises of both Synchron and Neuralink’s technology, the controversy surrounding Neuralink surpasses these possibilities in the areas of neuroscience and neurosurgery. This is the result of Musk’s proposal to eventually implant brain chips in individuals without any medical need resulting in a transhumanistic symbiosis between man and machine.[10]
Beyond the medical and scientific concerns for the longevity of this technology upon implantation, the possibility of removal post- neurosurgical placement and its adaptability to brain plasticity, there are numerous legal and ethical concerns in adopting Neuralink for elective use. Human autonomy is at the forefront of this disquietude. Personhood emanates from complex cognitive function in the prefrontal cortex in consideration of somatosensory and visual inputs. When a private, for-profit company is capable of remotely controlling regions of the brain that regulate thought, vision, movement and emotion, there arises a question of who possesses agency over the individual. Arguably, if the individual is unable to remove the device, modify its settings, or override the machine, artificial intelligence precedes its human host.
Notwithstanding the numerous constitutional implications that may be invoked as a result of this technology, defenses to criminal liability for a person with a brain chip should also be assessed. If someone were charged with a crime that required a particular mental state, could incapacity, such as brain chip override or malfunction, resulting from this procedure negate an intentional or even negligent action? In the civil context, could a contract be rescinded due to coercion, undue influence, or incapacity as a result of this device? Could injured plaintiffs or vicariously liable parties on behalf of a defendant’s actions seek indemnification on the part of Neuralink? What about a wrongful death lawsuit against Neuralink if a party committed suicide after implantation?
These probing inquiries are just the beginning of the legal, regulatory, constitutional, psychological, and moral questions that will be raised in the coming months and years. It is doubtful that current legal, medical, and technological infrastructure will be able to address these issues at this time. We are left with the question: is this the next step in human evolution and the key to unlocking dormant regions of brain, or the emergence of mind control from private companies? Only time will tell.
[1] Approach, NEURALINK (2022), https://neuralink.com/approach/.
[2] Id.
[3] Id.
[4] Id.
[5] Elon Musk & Neuralink, An Integrated Brain-Machine Platform with Thousands of Channels, PubMed Central (Oct. 31, 2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6914248/.
[6] Supra note 1.
[7] Darrell Etherington, Watch a monkey equipped with Elon Musk’s Neuralink device play Pong with its brain, techcrunch (Apr. 8, 2021, 9:31 PM), https://techcrunch.com/2021/04/08/watch-a-monkey-equipped-with-elon-musks-neuralink-device-play-pong-with-its-brain/.
[8] Rebecca Falconer, Elon Musk highlights monkey “telepathic typing” at Neuralink event, axios (Dec. 1, 2022), https://www.axios.com/2022/12/01/elon-musk-neuralink-brain-chip-event.
[9] Jon Fingas, Synchron says it’s the first to implant a human brain-computer interface in the US, endgadget (July 19, 2022), https://www.engadget.com/first-brain-computer-interface-implant-in-us-163756888.html.
[10] Kenny L., What is Neuralink: A Look At What It Is, What it Wants to Be, and What it Could Become, medium (July 18, 2019), https://towardsdatascience.com/what-is-neuralink-a-look-at-what-it-is-what-it-wants-to-be-and-what-it-could-become-2acf32b51dc5.