Brainspray and the Law

[Vocabulary Watch] ‘Brainspray’ – Electrical and other signals given off by the brain that are detectable – and increasingly usable – for various purposes.* 

Science, medicine and commerce

It is widely known that much of the functioning of our brain is done by electrical impulses, or at least that its functioning creates electrical impulses. Since the invention of the electroencephalograph (EEG) many decades ago, these impulses have been measurable. In recent years, they have become subject to increasingly subtle interpretation as well. Science is beginning to know what the measured impulses mean and to be able to use them.

At one time, it was a matter of detecting brain activity or lack of activity. Here, for example, is an EEG of a brain before and after meditation. (Here is an apocryphal variant.) Science has moved on…

It has been known for some time that some of the brain’s electrical impulses were commands to parts of the body to move. As this knowledge has become more precise, it has had both medical and commercial applications. On the medical side, scientists have managed to capture mental motion commands and convey them by computer to prosthetic limbs, allowing patients to move their artificial limbs by mental command. More recently, signals are flowing in the other direction, to allow sensations to the brain generated from an artificial hand. It was recently announced that the opening ball for the World Cup in Brazil this year would be kicked out by a paraplegic boy who will command an exoskeleton for the purpose by mental control.

On the commercial side, one can now buy a toy helicopter controlled by an EEG headset, which transmits brain waves to the control centre. Players of other games move characters on a screen by thinking of what the characters should do. Possibilities are beginning to multiply.

The novelty here is the ability to know what the brainwaves mean, what they are intending to command. Once they have that meaning, then the transfer to a machine is just a matter of comparing known patterns, no different in principle from deciding if a recorded fingerprint is the same as one offered for comparison. One programs the game to move in a particular direction when it receives a certain signal. When the signal is detected, the game moves. The difference in these examples is that the pattern generating the signal is coming directly from a brain, not from a computer – or in some cases from the brain to a computer to the machine.

Mental commands can also be given to live beings. A rat in Brazil learned to solve a maze and taught a rat in the United States to do it by mental signals transmitted over the Internet. Humans have controlled the motions of rats by sending mental signals. And a scientist sitting at a game console used the Internet to send the brainwaves reflecting what he thought his hands should do to a colleague in a different building, who successfully played the game without seeing it. The signals were captured coming out of the first player’s head and transferred into the second player’s head and thence to his hand, all without any surgery or physical implants. This is a step beyond ‘simple’ pattern comparison and recognition.

Consider again that scan of the meditative brain. Scientists are increasingly able to detect emotions through the reading of magnetic resonance imaging (MRI) scans. We know what the brain activity means to us internally, and not just to our physical interactions with the world we live in. At present, MRI machines are bulky and require subjects to lie still for long periods. As they become more convenient and mobile, however – and who will bet they will not? – people’s emotions may become more accessible than they are today, when one may be able to conceal them. As Ted Claypoole has said, ‘mass acceptance and use of this technology would ruin poker as we currently know it.’

So far, the technologies described here are reading brainwaves, not thoughts. But as the brainwaves disclose more and more complex emotions, at least some thoughts will become fairly transparent. (It is a bit like using metadata to deduce the content of written messages.)

Legal consequences 

Clearly all the phenomena described above involve the collection and use of brainspray, and possibly its disclosure. What legal issues arise, or will arise as the collection and use become easier?

The collection we are dealing with here does not involve cutting into the body. Medical battery would normally not be at issue. Consent to any touching has to be informed consent. How much does a person have to know about the capacity of an electronic headband to ‘inform’ his or her consent to its use? The legal impact will probably be elsewhere than in this aspect of criminal law.

Privacy issues are among the clearest legal impacts of these technologies. We are talking about collecting and using, and in some cases disclosing, the product of one’s mind. Almost all provinces have legislation dealing with personal health information, and the definition of that term could well extend to brainspray. Ontario’s Act speaks of information about an individual that ‘relates to the provision of health care to the individual’. Signalling to prosthetics would seem to fall into that class. Several provinces include ‘ information with respect to the physical or mental health of the individual’. Brainwaves used as therapy would arguably fall into this class. New Brunswick (and others) include identifying information that ‘ is derived from the testing or examination of any body part or bodily substance.’ Brainspray is unlikely to be considered a body substance, but the brain is clearly a body part, and analyzing or collecting brainwaves would constitute its examination.

The substantive obligation under these statutes is to ensure that the personal health information is not collected or used without consent. The basic treatment described here would normally be consented to. Are there other uses? Would the maker of a brainspray-controlled prosthetic device want to keep the records of the brainspray to help refine the device’s responsiveness? Presumably that could be covered by a contract, and it would need to be. (There might be intellectual property questions too: do a person’s mental commands end up as part of a commercial product in the development process? Are they, or do they become, somebody’s property?)

What of brainspray used to control games or otherwise not captured for the health of the individual? It must be information about an individual; it is the product of a person’s brain. How much more personal can information be, even if it is only commanding an electronic avatar to jump? Again, it may be in the interest of a game developer to capture the commands, for the purpose of refining the controls. Would that be a commercial use of the personal information, within the meaning of PIPEDA? Could the brainspray be anonymized beyond the reach of that statute?

We have seen that the brainwaves can be transmitted over the Internet, to rats and to humans. This might happen without the knowledge, or at least active intervention, of the person whose brainspray was being captured and transmitted. One will have to read the licence conditions of these games closely: are my brainwaves being sent to a corporation somewhere to improve its products? Are there less benign uses that might be made?

These questions will become more interesting, and perhaps harder, as technology allows the capture of brainwaves without physical contact. Once one can collect this information without the knowledge of the subject, will the law allow it? How will one even know that the information is being collected? It’s the Google Glasses question in overdrive.

What legal effect will be given to the interpretation of brainspray? Will employers be able to show cause for dismissing an employee by demonstrating recorded disloyalty or a ‘poisoned atmosphere’ through his or her thoughts? Employers are allowed to use employees’ Facebook posts as grounds for dismissal, though there are limits to their ability to require disclosure of social media content. What limits will apply to brain signals?

How persuasively will someone be able to deny his or her own thoughts? If someone reads my mind, have I published what they read, for the purpose of defamation law? On the other hand, might people be liable for the consequences of mistaken interpretations? How reliable will interpretations have to be in order to ground liability? Is the science close to a balance of probabilities?

It was noted here last year that if computers can talk to each other, they can be overheard. The same must be true even if one of the ‘speakers’ is someone’s brain. If signals can be intercepted, they can be interfered with. What happens when the wrong signals are sent to someone’s brain, or hacked and altered signals are received from a brain? Are the liabilities any different from hacking into someone’s pacemaker or insulin pump? The consequences can surely be as severe.

Criminal law punishes actions, not mere intentions, but will people attract more attention from law enforcement authorities because of what they are thinking? Will the police need a warrant to check brainspray? Will our ‘reasonable’ expectations of privacy evolve with the technology, here as elsewhere, or will courts find our brains an inviolable redoubt of basic dignity to be protected?

The prospect of profits drives innovation. Will merchants want to read brainspray of prospective customers (emotions often count more than analysis in such matters) either to make sales, to know when to press one’s opportunities, or on the other side of the ledger, to figure out who may have been shoplifting? If such activities would need consent under PIPEDA, would merchants be prepared to offer incentives to customers who agreed to have brainwaves captured, at least for the duration of their visit? Would you accept a ten percent discount to let the merchant or brand owner measure your satisfaction with your shopping experience?

PIPEDA allows collectors of personal information to rely on consent only for purposes ‘that a reasonable person would consider appropriate in the circumstances.’ (s. 3) When does collection of mental data become inappropriate? Are databanks of brainspray conceivable, and likely to be useful, and likely to survive PIPEDA s. 3 scrutiny?

Coming to a brain near you

You may be thinking that these questions are barely even hypothetical at this stage of technological development. Perhaps they are. But reread the description of what’s real today and think whether any of them would have seemed conceivable a dozen years ago. Do you think we have a 20/20 vision of 2025? The law is adaptive. It will need to be, to deal with the consequences of the foreseeable uses of brainspray.

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* The term was invented by technology lawyer Ted Claypoole of Charlotte NC to give a common name to phenomena studied by different branches of science, engineering, gaming and commerce. ‘Regulating the Brainspray Revolution’, Business Law Today, American Bar Association, November 2013 (online, for Section of Business Law members).