The recent ransomware attack, Wannacry, poses a stark reminder to advocates of cyborg technology that advances are only as strong as their weakest link. Consider the implications of cyber criminals threatening to switch off vital machinery keeping people alive? Last week, we considered how Australia might navigate the surveillance and privacy issues that will inevitably arise from the increased use of cyborg technology.
Bodily integrity is regarded as a fundamental human right. 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. This week, we explore discrimination, an area of social and legal tension that will arise in a cyborg world. Human and machine integration also gives rise to a wide variety of new crimes and the need for new criminal defences.
Discrimination is an area of social and legal tension that will arise in a cyborg world. Indeed, an organisation form called “Stop the Cyborgs” coalesced around an anti-Google-Glass platform based on privacy and surveillance concerns. Stop the Cyborgs did express wider rhetoric largely relating to privacy, surveillance and hacking in the context of more integrated technologies. Despite this, they still recognised a need in some medical situations for intervention with integrated machines and prosthesis.
It is reasonable to expect that similar organisations will arise in the future as more integrated technologies are seen as moving out of the realm of science fiction into a more frequent and everyday part of life. For these technologies to be successful, developers will need to consider their wider social and policy implications and how these might be managed. Doing otherwise will invite a social, political and legal backlash.
Discrimination is not only something that cyborgs will need protection from. Integrated devices are likely to be costly giving rise to socio-economic inequalities in respect of who can access certain technologies. While a serious ethical and social issue, it also has potential legal ramifications if it affects the legal standing of people in society or their ability to access or interact with the justice system.
Given the potential for human-machine integration to enhance the capabilities of humans, there’s also a risk that people who are unmodified (either because they cannot afford to be or are unwilling to be) may also be discriminated against.
Laws applicable to discrimination will inevitably alter and social policy programs may be needed to redress the effects of discrimination to avoid an inequality of opportunities.
“Maybe someday your 'maker' will come…haul you away, take you apart, and announce the recall of a defective product. What if all that's left of the 'real you' is just a couple of lonely brain cells, huh?” – Major Motoko Kusanagi, Ghost in the Shell (1995)
Bodily integrity is regarded as a fundamental human right. 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.
When devices are implanted into a person do they become a part of that person? Or do they become the property of that person? Or do they remain the property of third parties? This is a fundamental question the answer of which will colour the legal and ethical outcomes of many other subsidiary questions. This issue is taken to an extreme in the dark 2010 movie Repo Men which was premised on artificial organs being able to be bought on credit and repossessed.
Where a person is dependent on an implanted device for life or to carry out normal human functions in society, for that device to remain the property of a third party could arguably result in the whole person being placed under the (indirect) control of that third party. Such a position might be seen as contrary to human rights.
However, even if such device was seen as part of the person, could it still be removed, disconnected or restricted in its operation? For example, if what we do with a smartphone today (and more) is integrated into the human body, could that functionality be removed, turned off or limited where a person is incarcerated or convicted of criminal offences? Should a cyborg have freedom from disassembly and what is the scope of that freedom?
Body integrity in the context of the integration of the mind and body with electronic devices, computing frameworks or artificial intelligences also gives rise to questions such as whether electronic viruses or hacking become criminal offences akin to personal assaults.
Human and machine integration also gives rise to a wide variety of new crimes and the need for new criminal defences.
Former Vice President Dick Cheney had the connectivity of his heart implants turned off when he was Vice President on the basis that the device could potentially be hacked in order to assassinate him. These were not fanciful concerns. The ability to interfere with various medical devices to potentially kill or harm patients has been shown to be possible.
These types of crimes may be difficult to detect today, but in a more connected and integrated world that detection might potentially be even harder. It is possible to imagine other types of criminal activities that might also be aided by new platforms in a world where it is possible to see things through another person’s eyes.
Electronic devices that are connected to the web are susceptible to outside interference. The now almost daily media coverage of cybersecurity threats taps into a growing societal uneasiness at our susceptibility to cyber-attacks in an interconnected digital age. The recent and much publicised WannaCry incident both exemplifies and reinforces such feelings of vulnerability. However, we are far from any panacea that takes us to the holy grail of ‘unhackability’.
If in the future our smartphone and similar technologies are integrated with the human body, could our perception of reality be unknowingly modified by external influences? If it could, this would have profound implications for the individual in discerning what is real, and for law enforcement agencies in relying on individuals in their enquiries.
It could even potential result in new defences. Where a high level of human/machine integration occurs:
Could a person claim they had no control of, or where not responsible for, their actions – i.e. that they were hijacked and used for nefarious purposes without their knowledge or control?
When (if at all) should the digital records produced by integrated devices be searchable by government or enforcement agencies? Could the person claim that data used from such devices removes that person’s right to decline to testify or to self-incriminate themselves and fundamentally disadvantages that person as against an non-integrated person?
Individuals or enterprises pursuing human/machine integration must address and plan for the social, ethical and legal ramifications of that integration in advance of the integration being possible. While ultimately those matters will be addressed by governments and society, to pursue the science without also developing solutions to the social, ethical and legal issues runs the risk of reactionary barriers and adverse outcomes for the very integration that is being pursued.
“If a technological feat is possible, man will do it. Almost as if it's wired into the core of our being.” - Major Motoko Kusanagi, Ghost in the Shell (1995)
The best time to proactively influence the foundational thinking on these types of matters is in advance of the scientific breakthroughs that are being pursued and, importantly, by mainstreaming that thinking.
 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 publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.