Australia: Forget Terminator: Cyborgs have rights too (Part One)

What do Darth Vader, Steve Austin, Major Motoko Kusanagi and former Vice President Dick Cheney (prior to his heart transplant) all have in common? They're all cyborgs.

WHAT IS A CYBORG?

Cyborgs aren't simply the stuff of science fiction; they walk among us. With technological advances and the exponential expansion of our scientific capabilities and understanding, the unique nature and needs of cyborgs will become increasingly obvious in society.

The term cyborg, is a contraction of 'cybernetic organism' and is typically attributed to a paper in 1960 by Manfred Clynes and Nathan Kline on space exploration. However, the concept of a human-machine mixture was alive from a considerably earlier time. There is no precise definition of what constitutes a cyborg. In its broadest sense, a cyborg is a being that is part electronic or mechanical and part biological.

For our purposes, we won't consider cyborgs like Schwarzeneggerian terminators – that is, robots or artificial intelligences that use human tissues or have biologically derived components. We will, instead, focus on people whose functioning is aided by or is dependent upon a mechanical or electronic device, especially where the person and the device are integrated.

Cyborgs exist on various continuums and in various forms. For example, the Cyborg Foundation refers to various relationships with technology: psychological, wearable, biological and neurological. However, there are other continuums too such as: the recreational versus necessary for life or maintaining functionality versus superhuman functionality.

The Chief Justice of the US Supreme Court in the 2014 decision in Riley v California indicated, albeit metaphorically, that mobile phones had reached a point where they were so intimately a part of peoples' lives and functionality that they might be regarded as part of the person.

While in the past people were seen as using devices and machines, in a fully developed cyborg world the device becomes an enmeshed part of the person – perhaps to the point where there are no precise boundaries for where the person stops and the device starts.

Our growing social, physical and biological integration with technology will give rise to new and critical legal and ethical issues.1 This week, we examine privacy and surveillance issues and their importance as the degree of direct integration increases. Next week, in the second part of this topic, we'll take a closer look at discrimination, bodily integrity and potential cyborg crimes and defences. These are matters that should ideally be addressed in advance of the technological transformations that will drive transhumanism including human-machine integration.

PRIVACY

A feature of electronic devices is that they generate data as an inherent part of their operation through transactional records or because their purpose is to sense, measure and record.

Even existing devices such as pacemakers, for example, generate data. Indeed, an Ohio man was recently charged with arson based on inconsistencies between his statements and the data recovered from his pacemaker.2

Swedish company, Epicentre, is engaged in embedding radiofrequency identification (RFID) microchips into about 150 volunteer employees. The chips can be used to open doors, use the office photocopiers and, potentially, even pay for café lunches. Patrick Mesterton (co-founder and chief executive Epicentre) was reported as saying that the chips can potentially:

  • allow employees to do airfares or to go to the local gym;
  • replace credit cards or keys;
  • allow a person to communicate with devices or smartphone apps.3

However, the RFID chip has also been reported as allowing companies to track employees every move – even to monitor toilet breaks and how long people work for.

Epicentre's embracing of RFID chips is not just a fringe one-off. In 2004, it was reported that 160 people in the Mexico attorney general's office were implanted with chips to allow them to have access to secure areas of their headquarters.4

Because of their integration with electronic devices, cyborgs are especially exposed to privacy issues because these devices collect, store and transmit data. The more personal, detailed and intimate the nature of that data collected due to the degree and nature of the integration, the greater the potential privacy threat to a cyborg.

Who controls the data produced, who has access to it and who owns it? In what circumstances can that data be forcibly searched and seized by authorities?

SURVEILLANCE

The capability of cyborgs to sense and record information also potentially affects the privacy of others and results in concerns about surveillance.

An interesting example relates to an alleged incident involving Steve Mann – often referred to as the father of wearable computing. He has a digital eyepiece – referred to as an EyeTap – that is permanently attached to his skull and is impossible to remove without special tools. The EyeTap looks a bit like a Google-Glass and both displays information in his field of view and acts as a camera.

While sitting at a French McDonalds with his family, McDonalds employees took exception to the EyeTap. Mann gave them a note from his doctor in relation to his technology. The employees allegedly crumpled and tore up the note, sought to forcibly remove the device and pushed him out of the restaurant.

Mann indicated that because the EyeTap was damaged by the employees it retained some images in the computer buffer that would otherwise have been overwritten if it hadn't been damaged. Mann claimed these images verified his version of events.5

Aside from the issue of cyborg discrimination (bearing in mind that the EyeTap was attached to Mann's skull), the situation gives a rudimentary example of the ability of integrated electronic devices to record images or other data about other people.

Devices have become and will continue to become more sophisticated – look at mobile phones. The next development will be to make these wearable, and then to full integration with the development of a digital/neural interface.

Elon Musk has already expressed his interest in the development of a digital neural layer for integration with the human brain. Even the US Military has embarked on a research programme referred to as Neural Engineering System Design with a view to developing an implantable neural interface connecting humans directly to computers.6

It has been speculated that the human-machine integration will be a necessity, and not merely a convenience, in order for people to keep pace with robots and AI.

If you imagine a world where a person's smartphone is literally built into their head, you must consider that it will also be capable of recording what the person sees or even hears – similar to wearable devices now but more intimately and less conspicuously.

A world where people have a built in potential for surveillance (whether intentional or unintentional) would have profound social and legal consequences. You could no longer just "leave your phone at the door" or assume that everyone else has.

NEXT WEEK

In part two of our look at the cyborg, we will consider discrimination, an area of social and legal tension that will arise in a cyborg world. Bodily integrity is regarded as a fundamental human right.7 However, with the fusing of the human and the machine, various serious legal and ethical questions must be addressed in respect of the bodily integrity of a cyborg. Human/machine integration also gives rise to a wide variety of new crimes and the need for new criminal defences which we'll also consider in the second of this two-part series.

Footnotes

1 For example, see the detailed analysis of Benjamin Wittes and Jane Chong in "Our Cyborg Future: Law and Policy Implications" (September 2014) at https://www.brookings.edu/research/our-cyborg-future-law-and-policy-implications/

2 http://www.cbsnews.com/news/mans-cardiac-pacemaker-data-led-to-arson-charges/; http://lawnewz.com/high-profile/pacemaker-data-leads-police-to-arson-fraud-suspect-in-utterly-insane-case/

3 http://www.news.com.au/technology/science/human-body/swedish-company-epicenter-implants-microchips-into-employees/news-story/5c48700ebb54262ae389db085593ab12

4 http://www.nbcnews.com/id/5439055/ns/technology_and_science-tech_and_gadgets/t/microchips-implanted-mexican-officials/#.WOx4y2e7q71

5 http://eyetap.blogspot.com.au/; https://www.forbes.com/sites/andygreenberg/2012/07/17/cyborg-discrimination-scientist-says-mcdonalds-staff-tried-to-pull-off-his-google-glass-like-eyepiece-then-threw-him-out/#3d0074ec6719; http://knowledgenuts.com/2013/11/08/anti-cyborg-discrimination-is-a-terrifyingly-real-thing/; https://en.wikipedia.org/wiki/Steve_Mann

6 https://www.theguardian.com/technology/2016/jan/20/us-military-cyborg-connecting-humans-computers

7 See for example: Article 3 of the Universal Declaration of Human Rights; and Articles 3, 7 and 9 of the International Covenant on Civil and Political Rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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