As cyborg technologies become more integrated into the public sphere, certain legal thresholds and concepts will begin to shift, says James Giordano, director of the Center for Neurotechnology Studies at the Potomac Institute for Policy Studies, in Arlington, Virginia.
?We’re at a time where technology may now inform philosophy, ethics and the law, which may necessitate the development of some new ethical constructs, the abandonment of particular doctrines, and the formation of new laws or at least new precedents within the law,? says Giordano, who also chairs the Capital Consortium on Neuroethics, Legal and Social Issues and the National Neuroscience, Ethics, Legal and Social Issues project.
Initially, Giordano expects ?a very strong movement? to adhere to existing laws based on long standing ethical and philosophical constructs.
However, as the capabilities and spread of cyborg technology increases, constructs within philosophy and ethics will begin changing. Ultimately, Giordano predicts, legal precedent –if not concept of law– will follow suit.
?Frontier science? like brain implants and neural-machine interfaces carry the potential for unanticipated consequences and runaway effects.
?We have a tentative understanding of how the brain works and a general understanding of how these techniques and technologies may interface with the nervous system to produce and enable enhancements. But we don’t really understand all the nuances,? says Giordano.
Policy makers could limit access to certain enhancement technologies to clearly-defined sections of society ?military personnel, or people with intellectual disabilities or brain injury, for example. But once any technology is openly available, controlling access can be a serious challenge.
?Once these things are out in the market space, it’s not just a question of who actually needs them it’s a question of who wants them. Then you then get market pull,? says Giordano, who sees a role for international ethics organizations, UNESCO, and the World Health Organization in regulating the use of technologies such as neural-machine interfaces and brain implants internationally.
Policy makers also need to look at potential ?power situations? that might arise.
?Enhanced individuals may create new norms, but who will determine these norms? The market? Policy makers? And is there potential for certain groups to gain power over other groups through the use of cyborg technology?? asks Giordano.
Giordano calls for policy makers to take another look at the National Neurotechnology Initiative (NNI), a Neurotechnology Industry Organization-led proposal requesting federal investment in neurotechnology research.
?Over the next couple of years we’re looking to reappropriate interest in the NNI with specific and explicit means of allocating funding into a viable pool to allow the establishment and sustenance of these types of forums and working groups that could inform national and international policy.?
In the short-term, prospective legislation governing cyborg technology seems unlikely in the U.S. as policy makers wrestle with starting definitions and researchers wrestle with technology development. The outcome of the RoboLaw project is uncertain, at least until their whitepaper is published and presented to the European Commission in 2014.
Most likely to happen is a series of court judgments establishing precedence on a case-by-case basis. And as Linda MacDonald Glenn‘s experience shows, the potential for ground-breaking changes to the law arising from these future cases is very real indeed. Glenn is a U.S.-based attorney and bioethicist at the Alden March Bioethics Institute, Albany Medical College
In the meantime, what can manufacturers and researchers do to minimize potential liability?
The sheer volume and detail orientation of computer technology married with the heuristic, context driven capabilities of human desires could lead to cyborg entities so driven that they bypass or ignore certain basic physical needs ?much like an addict, says Glenn.
?Building in rest periods or time limitations, limiting overuse, and regular inspections are just a few ways that manufacturers can limit liability,? says Glenn
The process for achieving FDA premarket approval of ?medical devices? is less rigorous than the process for drugs, says Glenn. The FDA simply requires that manufacturers provide ?reasonable assurance? that the device is ?safe and effective? for its intended use.
FDA approval or premarket approval can bring some protection to manufacturers. In the 2008 case of Riegel vs Medtronic, for example, the US Supreme court held that a plaintiff may not sue under state law to challenge the safety or effectiveness of a medical device to which the FDA has given premarket approval.
?However, researchers and manufacturers would be wise to emphasize informed consent, post-approval registries for cohort studies, and long term observational studies to ensure long term safety,? says Glenn.
Do you think that law-making around emerging robotics should be led by market forces or by policy makers? Are you a cyborg with a story to tell? Email us.
Other thought provoking articles grouped under, The Cyborg Agenda:
The Cyborg Agenda: Blurring Body Boundaries
Linda MacDonald Glenn, a U.S.-based attorney and bioethicist at the Alden March Bioethics Institute
Neil Harbisson, Spanish artist and founder of The Cyborg Foundation
The Cyborg Agenda: Extreme Users
Rich Donovan, CEO of Fifth Quadrant Analytics, a business intelligence firm focused on the disability market
Patrick Lin, director of the Ethics and Emerging Sciences Group, at California Polytechnic State University