Articles Posted in Government

According to Biomedcentral, the four laws of neurotechnology are as follows: (1) right to cognitive liberty; (2) right to mental privacy; (3) right to mental integrity; and (4) right to psychological continuity. We’ve discussed some of the legal and ethical issues related to neurotechnology laws in previous articles. Today, our plan is to discuss neurolaws and evaluate the legal and ethical issues.

What are neuroscientists doing at this time?

Neurotechnology is on the verge of expansion especially since there more interest on the topic by the medical and technology sectors. Neuroscientists have thought about the possibilities of connecting electronic devices such as electrodes to the brain and analyzing the information. Now, it has become a tangible possibility due to the expansion of science and information technology which allow structural measures, neural activity and connectivity, molecular composition, and genomic variation of the brain. These abilities have been made easier by exponential advances in computational ability, artificial intelligence, machine learning, and development of sophisticated databases. Neurotechnology can predict a person’s danger level, probability to recidivate, evaluate intent, evaluate competence to stand trial, reveal biological mitigating factors that could explain criminal behavior, distinguish chronic pain from malingering, regain lost memory, and differentiate between true and false memories.

Neurotechnology device manufacturers should take legal and ethical issues into consideration when implementing microchips into a patient’s body. There are two methods being used at this time. First, is the “non-invasive” method where electrodes are inserted on the head’s surface as electrode caps which pick up electrical fields from the brain. So, the electrodes are not penetrating the patient’s body. Second, is the “invasive” method where the electrodes are placed inside the brain’s tissue which can be used to diagnose neurological diseases such as epilepsy.

Neurotechnology raises important legal issues since the human brain is connected to an external device such as a computer. For instance, one question is whether the external device changes the human’s brain activity, and if so, what could be the potential consequences. Artificial intelligence will inevitably change the legal framework in the near future especially since it will be used in the human body. So, the issues of privacy and data security will always come up.

What are the major concerns?

The European Union has developed an artificial intelligence strategy to simplify research and rules and regulations. It’s focusing on building a trustworthy environment. The European Union’s approach to this new technology is to implement a legal framework to address fundamental rights and safety risks. It plans to implement rules to address liability issues. It also plans to revise the sectoral safety legislation and modify the rules and regulations. The new framework grants developers, deployers, and users a certain amount of clarity if it becomes necessary for them to intervene if legislation does not cover the issues.

Artificial intelligence can be used in critical infrastructures such as manufacturing and transportation. This technology can be used in education and vocational training such as preparing, taking, and scoring exams. Robotic technologies are already being used in medical products that would allow robot-assisted medical procedures. Law enforcement agencies can use this technology but they should not interfere with the general public’s fundamental rights (e.g., free speech, religious beliefs, privacy). The state and federal courts can use it for assistance in evidence comparison and evaluation. Biometric technology can also be used in conjunction with artificial intelligence.

On April 21, 2021, the European Commission has published a proposed set of laws to regulate the usage of artificial intelligence in its jurisdictions. The Artificial Intelligence Act consolidates a risk-based approach on the pyramid of criticality to assess the risks. There are four major risk levels starting from minimal risk, limited risk, high risk, and unacceptable risk. This proposed legislation implements a new enforcement agency called the European Artificial Intelligence Board (“EAIB”) which consists of national supervisors who will have oversight power. The Artificial Intelligence Act will have an extraterritorial effect on all providers, marketers, or distributors whose products or services reach the European Union’s market. This regulation defines artificial intelligence as a collection of software development frameworks that include machine learning, expert and logic systems, and statistical methods.

The experts describe “metaverse” as an alternate digital real-time existence offering a persistent, live, synchronous, and interoperable experience. It is where the real world meets the virtual world. Well, it sounds like science fiction but it’s going to be reality soon. The question is what are the legal issues and what remedies are available now.

Intellectual Property Issues

First, can copyright licenses protect the use of a work? The copyright laws should protect the original works as described in the applicable statutes such as the Copyright Act. In general, it protects original works of authorship, including, literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.

Our law firm has received thousands of calls from actual or potential clients who were concerned about false, disparaging, or defamatory comments that were made about them on the internet. These comments were made by known or unknown individuals on websites, blogs, or forums such as Twitter, Facebook, Yelp, Reddit, or Instagram. The callers were obviously disconcerted and wanted to know the available legal remedies.

The federal Communications Decency Act (“CDA”) that is codified under 47 U.S.C. Section 230 has a direct effect on online defamatory comments that are made on social media platforms. This federal statute states that Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

Doxing has become a major problem on the internet since it usually violates the victim’s privacy rights. It is a form of unwarranted harassment and stalking on the web as the culprit shares the victim’s personal information with the general public and encourages them to target the victim. Hence, the victim could feel exposed on the internet and be left without legal protection.

The doxing party reveals personal information about a person or legal entity on the web in a typical case. The doxing party is usually savvy in extracting personal information from third-party websites or in hacking electronic devices. This personal or private information is illegally obtained in violation of the victim’s privacy in an effort to annoy or harass him or her for no legitimate purpose. In other words, it is an act that constitutes “harassment” under the applicable statutes such as California Code of Civil Procedure section 527.6.

There have been many doxing incidents in the past years. For example, there was doxing of abortion providers wherein their personal information was exposed to the general public. The court held this violation was considered an incitement to violence and not subject to free speech rights. Hacktivists called the “Anonymous Group” have been responsible for exposing information of law enforcement agents as an effort to retaliate against investigations. They have also released information about the Ku Klux Klan in reference to the shooting of Michael Brown. In addition, there have been misidentification incidents in connection with the Boston Marathon bombing on Reddit where Sunil Tripathi was mistakenly identified as a suspect.

The Fourth Industrial Revolution is another name for the quantum technology movement. Quantum computers are in the process of being developed at this time and it will continue to impact the legal system and our daily lives. It will also impact data privacy and national security on various levels.

Conventional computers have obvious limitations which can be surpassed by quantum computers. First, conventional computers use binary bits (i.e., 0s and 1s) to operate which presents a significant limitation. Second, as a result of the aforesaid limitation, they cannot operate as quickly and efficiently. Therefore, the simple fact that quantum computers operate by using superposition and entanglement, allows them to yield a lot more power than conventional computers. So, in other words, their computing power has an extremely higher capability which can have a positive effect on medical research, business analyses, artificial intelligence, virtual reality, and other technologies. However, there is a potential problem with quantum computers with error correction issues which can be fixed according to the experts. So, in summary, the final objective is to build a fully error-corrected quantum computer which can manage all disruptions.

The cybersecurity infrastructures in the private and public sectors can be affected by this emerging technology. The private sector which owns, manages, or operates a vast amount of sensitive data at local and remote locations (e.g., cloud servers) can be directly impacted. The public sector will also be affected for the same reasons. There are various types of intellectual properties (e.g., patents, trademarks, copyrights) that have been stored on private and public organization’s network servers. These valuable documents, include, but may not limited to, trade secrets which should be properly protected from public access.

The California Electronic Communications Privacy Act (“CalECPA”) was enacted several years ago to require government agencies to obtain a valid search warrant prior to requesting electronic information from service providers. These statutory protections can be enforced by business entities and individuals and extend to communication service providers which collect and store electronic information, including, but not limited to, emails, digital documents, pictures, videos, geolocation data, and Internet Protocol addresses.

This statute yields additional privacy protections when compared to the federal Electronic Communications Privacy Act which was passed as Public Law 99-508, Statute 1848, and codified under three separate titles. Title I, is referred to as the “Wiretap Act” and prohibits the unlawful interception of electronic communications. Title II, is referred to as the “Stored Communications Act” and protects content that is stored by service providers. Title III, is referred to as the “Pen Register Act” and addresses pen registers and trap-and-trace devices. It mandates government agencies to obtain a valid court order that authorizes the installation and use of pen register and trap and trace devices.

The CalECPA requires a valid search warrant in order to compel the production of or access to sensitive information such as emails that are stored on a computer server for more than 180 days, detailed geolocation, and sensitive metadata that is related to the consumer’s electronic communications. The statute does not allow government agencies to: (1) compel the production of or access to electronic communication information from a service provider; (2) compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device; or (3) access electronic device information through physical interaction or electronic communication with the electronic device unless it is voluntarily disclosed by the intended recipient.