Brain implants: the delicate question of the legal liability of human-machine interfaces

For the past few years, Elon Musk has been making announcements about technological advances. Autonomous cars, interplanetary travel, human-machine interface, purchase of the social network Twitter… nothing seems to stop the businessman. No technical, geographical or physiological obstacle seems insurmountable to him. However, his projects could, in the short term, pose real difficulties from a legal point of view.

The search for a fusion between the brain and artificial intelligence

With Neuralink, one of Elon Musk’s objectives is to create a interface between human and machine. In the more or less short term, the project concerns the development of brain implants to compensate for neurological disorders in people suffering from paraplegia or tetraplegia. In the long term, it would mean placing the human brain in symbiosis with artificial intelligence.

These implants have been the subject of recent announcements: they could be tested in humans during 2022, if the Food and Drug Administration authorize it. Remember that these promises are not new: they had already been made several times in recent years. They are also part of a particularly rich research contextwhich points out certain limitations in the use of such implants.

Questions about the notion of “legal personality”

The quest for an interface between humans and machines leads to wondering what could happen to entities that are truly in symbiosis. The dichotomy between people and things has persisted for centuries. It structures civil law: everything that is not a person is considered to be a thing. The former are subjects of law, that is to say they are holders of rights and obligations. The latter are subject to the will of the former.

It would therefore be necessary to determine in which category to place these entities based on the symbiosis between man and machine. Already today, it is accepted that the “legal personality” is not only the prerogative of human persons: companies, for example, have the legal personality. They thus have rights related to their technical legal personality.

Some also suggest mobilizing this legal construct of “legal personality” to protect animals.

Could this fiction in the future make it possible to grant rights to these human-machine interfaces? If so, it would still be necessary to determine what rights they could benefit from. Certain rights specifically target the human being in each individual. Granting them to half-man, half-machine entities would be nonsense. For example, respect for human dignity requires preserving the genetic integrity of human beings. Such protection would not be possible in the same terms for these new entities.

More generally, some are concerned about the possible legal confusion between persons and things.

The body, accessory of the machine

Like the hybrid between man and animal, the hybrid between man and machine would be a kind of chimera, that is to say, a being composed of disparate parts forming a whole without unit.

Read more: Brain implants: questioning human nature

Such hybridization questions the limits of legal personality. If the technological part of the entity is involved in very large proportions, it seems difficult to conceive of attributing legal personality to it in the same terms as to the human person. Above all, if the human body becomes only the support of the machine, directed by artificial intelligence, would this entity still have legal personality? According to the rule according to which the accessory follows the principal, the body, accessory of the machine, should respond to the same regime: this entity, even having a human body, would be a thing, not a person.

The particularity of brain implants

The brain implants developed under Neuralink cannot be treated like any prosthesis that would be implanted in the human body. Admittedly, the project today deals with the use of implants for therapeutic purposes.

But such implants could, in the future, become the seat of new cognitive abilities. Distrust must be in order at a time when autonomous cars, already developed by the multi-billionaire, are involved in traffic accidents induced by malfunctions of artificial intelligence.

Above all, if the decisions are not taken autonomously by the human person, but rather supplanted by the intervention of artificial intelligence, shouldn’t the latter be the holder of rights and, above all, of obligations? However, since it is only one thing, it is only an object of right.

The fear of a shift in the use of brain implants

In short, experimenting with brain implants for therapeutic purposes is one thing, using them for the purpose of symbiosis between man and machine is another. These two situations must be distinguished because they do not respond to the same rules of law.

Read more: Humanism, posthumanism, transhumanism: what exactly are we talking about?

In the first case, implants could be regarded as medical devices, which can be tested on humans, for the purpose of improving their health. In the second case, it would be a question of opting for an increase in human capacities and therefore, of being part of the transhumanist current to which Elon Musk seems to belong. The difficulty that arises today in the face of the multi-billionaire’s projects is therefore to curb such transhumanist inclinations. If carried out, these ambitions would pose serious difficulties in terms of the attribution of legal personality and, consequently, of responsibility with regard to the acts which could be carried out by these half-man half-machine entities.

The multiplication of risks through the use of technologies

Moreover, what would happen in case of biohacking of the implant? Already the series Biohackers made it possible to underline that scientific progress could lead to manipulations of the genome for criminal purposes.

In the case of cerebral implantation of chips with artificial intelligence, hacking could be particularly dangerous. Some believe, moreover, that a hacked artificial intelligence would be a weaponenabling cybercrime to flourish.

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Brain implants: the delicate question of the legal liability of human-machine interfaces

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