This post is authored by Talya Deibel and is a reproduction of a post published on the Transformative Private Law Blog on 18th October 2024. Thanks to the TPLB for the permission to repost.
Digital technology is being integrated into our daily lives and personal spheres and soon it will be part of our bodies. For instance, advancements in neurotechnology include brain imaging and the manipulation of brain activity through neural devices, as part of the diagnoses and treatment of several psychiatric and neurological conditions. However, these technologies are being re-purposed for everyday consumer usage and are designed to soon become part of the “new normal.” Common examples include special headbands using EEG technology for meditation and entertainment or intelligent caps which detect attention span, cognitive load, and fatigue.
The home usage of neurotechnologies raise the question how comprehensive the protection from market forces should be. The answer includes private law; with the market-driven development of technology leading to the question whether and “how” private law can be an agent of social justice and resilience?
The EU Medical Devices Regulation is the first binding hard law instrument applicable to non-medical non-invasive neurotechnologies. However wearable neuroimaging technologies such as EEG caps, headbands, or game controllers fall outside of its scope. Moreover, the manufacturers tend to see the purpose of the technologies involved as “wellness”, “lifestyle”, “education”, “entertainment”, rather than as “safety” or “health”. Hereby stricter regulations are circumvented. Accordingly, consumer law becomes a primary medium for addressing potential challenges. However, as the AI and neurotechnology transform fundamental concepts around which law and society are organized, a novel way of looking at concepts like “consumer protection”, “vulnerability” and “risk” is required.
For example, consumer neurotechnologies create risks of bodily and mental harm, data breaches, privacy, and manipulation. Furthermore, certain individuals are more likely to be seen as more susceptible to these risks. This includes children whose prefrontal cortex is underdeveloped, people dealing with addiction, neurodivergent individuals, immigrants, queer individuals, people with disabilities, and members of ethnic or religious minority groups, and so on. These groups are commonly referred as “vulnerable” in human rights scholarship.
Being more vulnerable does not mean being weak or being in need of “special protection”. Its implication, on the one hand, is the perspective of Fineman, who pioneers vulnerability theory in legal scholarship where vulnerability is seen as universal, as inherent to the human condition. On the other hand, there are specific differences among individuals that create the most significant social advantages and disadvantages. These include horizontal differences such as race, gender, and ability as well as vertical differences such as differences in social standing and status. However these differences are amplified when there are intersectional challenges to which current EU regulatory frameworks and responsible innovation models can hardly answer.
Accordingly the development of a protective normative framework without stigmatizing certain groups as in need of “special protection” becomes one of the primary concerns of private law. Everyday neurotechnologies pose a unique opportunity to reconfigure existing categories. Neurotechnologies potentially amplify existing physical and emotional dependencies which arise from the body. Moreover, they form new types of inevitable and derivative dependencies. For instance, neuro and AI technology are not single phenomena. They refer to wide range of socio-technological practices which include data storage, analysis, and practices to manipulate brain data through AI generated algorithms. This comes with the risk of data and privacy breaches as well as large-scale profiling and direct/indirect discrimination.
In other words, this great (technological) transformation potentially increases the widespread inequality and accumulation of wealth. This includes different risks, which are already being debated in human rights scholarship as they have potential effects on autonomy, mental integrity, and cognitive freedom. Moreover, legal and policy initiatives are already materializing to develop normative frameworks and ethical guidelines for the responsible use of neurotechnology.; For instance, the ‘neurorights’ movement advocates for a new set of human rights to protect the mind.
Missing, however, is private law scholarship. For instance, one major challenge of consumer neurotechnologies is how they amplify the risk of surveillance, in the context of gender, race, ableness, and other social conditions. Everyday usage of neurotechnologies disturbs the lines between public/private and consumer/shareholder. Brain-computer interfaces (BCIs) connect the brain to a computer, and as such, create new socio-technological assemblages between humans and machines. On the one hand, this creates demarcation problems as it challenges modern dichotomies such as person-property and artificial-organic. On the other hand, it poses a unique opportunity for private law scholarship for a change to overcome oppression, marginalisation, and exploitation.
Neurotechnologies are often considered as disruptive by how they shake liberal conceptions of personhood, contracts, and property. On the one hand, this is not completely novel; it poses similar risks and legal challenges to the earlier advancements in biotechnology. On the other hand, the risks associated with the consumer neurotechnologies are related to their high level of integration with the “inner realms” of the human beings. As such they present a new example of how digital technology is integrated into our private sphere.
The liberal tradition is characterized by a legal subject who is embodied, and who has a deep and rich forum internum which is filled with unmanifested thoughts, emotions, desire, will, and memories. This inner self is epistemologically closed and ontologically separate, with only the subject having privileged access. This inner self is seen as the locus of intentionality, authenticity, creativity, identity, and dignity. However, the transformation of neurotechnology into a mainstream practice and its migration of into the sphere of contractual relationships challenges this idea of a liberal individual.
One way to investigate how private law can be an agent of social justice is through revisiting the liberal conception of the person as the contracting party and our conceptualization of ‘genuine’ freedom as the primary condition of what it means to be a human. Private law is interpreted and perceived in its relation to a model ‘human being’ and its Kantian re-conceptualization. For instance, this model person is often seen as having a metaphysical inner self, as the locus of individual autonomy, sphere of confidentiality, and authenticity. In common law traditions, he is perceived as a reflection of the Lockean self-interested liberal agent. In the civilian tradition, the ordinary legal subject is the extension of the Roman bonus pater familias, who is honest, loyal, and reasonable in his private relationships. Regardless, our modern legal subject is seen to be autonomous, self-sufficient, independent.
This person has a degree of control over his economic and social relations, including decision making processes and consumer choice. However, these are assumptions, and they reflect the uniform model of a white, male, able-bodied citizen on which legal expectations and standards are based. In turn, neurotechnology challenges this, by highlighting a reality wherein consumers are diverse, and wherein a different and inclusive approach is needed. For instance, vulnerability theory seeks to replace the rational man of liberal legal thought with the vulnerable subject. This inspires us to be mindful of a positivist and policy-oriented vision of individually-focused private law.
Consumer usage of neurotechnologies raises questions not only related to the protection of mental data, but also to the relationship of private law theory to freedom. Potential violations such as unfair collection and usage of data, manipulation, exploitation which can lead to structural oppression are to be materialized through contractual relationships. This requires transcending the traditional models in private law such as ‘persons’, ‘contracts’ and ‘responsibility’. Private law theory and philosophy through its many tools is capable of dealing with problems that are intersectional by nature. One example is the vulnerability theory as an inspiration in creating legislative and administrative set of decision-making ethics in consumer law. It is indicative of a new social contract, one that can complement a Rawlsian vision based on fairness and wherein private law becomes an instrument of social justice. Hereby consumer law could become more resilient and better aligned with the requirements of current techno-scientific realities.
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