USB Brain Computer InterfaceIn ‘Oh, Really?’ the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fun and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise.

While complex interactions with the human brain such as those seen in the four-Oscar Award winning movie Inception are still far from scientific capability, the development of brain-computer interfaceshave become less science fiction and closer to reality. What potential legal issues could arise from interacting with the human brain on such a rich level, inputting and outputting from the deepest repositories of the brain?

In Inception, Cobb (played by Leonard DiCaprio) can enter the dreaming mind of another person to steal his secrets. Are we capable of seeing what a brain is dreaming? Matthew Wilson at MIT used implants in a rat’s brain to see how neurons fire, revealing patterns as the rat is moving through the maze. Using the implant and an attached computer, Wilson recorded particular patterns corresponding to specific parts of the maze as the mouse ran the maze. Then Wilson recorded nearly identical patterns while the rat was sleeping. Apparently, the rat was dreaming about running the maze. This is a far cry from the what we saw in Inception. However, this relatively low resolution interface to the rat’s brain is likely just a preview of the interfaces yet to come.

Existing mechanisms now include those that can extract neural signals from the brain for control of prosthetics and video games, and interfaces that insert signals into the brain — such as those that can restore rudimentary hearing with an implant into the brainstem. (See: Brain-Computer Interaction and Medical Access to the Brain: Individual, Social and Ethical Implications)

In her article, Elisabeth Hildt raises the questions of ethics, user control, informed consent, autonomy and privacy as well as ethical and social issues surrounding these early devices. In Inception,  few questions of ethics were raised, since the group of dream bandits operated outside the confines of the law, such as occurs in one scene, which is supposed to occur in Mombasa, Kenya, involving a room filled with sleeping people whose dreams get tapped. Do these people consent to the daily dream sessions or had their reliance on dream reality taken over their ability to give informed consent? Should we have privacy in our thoughts and dreams, or is the brain just a container for a database of information, waiting to be tapped?  The law may have to address this issue at some point in the near future.

Privacy law saw its beginnings in a law review article written by Samuel Warren and Louis Brandeis, who defined “privacy” as “the right to be let alone.” While at common law, privacy matters are evolving in case law, additional legal analysis by Torts expert Dean Prosser indicated that a vast majority of American Courts recognize existence of the right of privacy.

NeuroFocus has created an electroencephalogram (EEG) sensor cap called “Mynd,” which is notable because of the technology used and its application. EEG’s are traditionally used in hospitals to diagnose various patient issues and require adhesive electrodes that are wired from the head to a computer. In contrast, Mynd is a wireless EEG sensor, which makes it more useable in home and commercial data collection applications. Mynd enables marketers and advertisers to determine the effectiveness of their spokespersons and advertisements by reading consumers’ “deep subconscious responses in real time.” Obviously, there is no way to quietly slip Mynd onto someone’s head and read their thoughts surreptitiously. Thus, privacy law would only come into play if the information collected is used outside the scope of what the wearer consented.

Another possible approach to protect the intellectual property in the brain is to define the brain as a “computer system.” In eBay v. Bidder’s Edge, the court ruled that plaintiffs “presented evidence sufficient to establish a strong likelihood of proving both prongs and ultimately prevailing on the merits of its trespass claim.” Those prongs include that defendant intentionally and without authorization interfered with plaintiff’s possesory interest in the computer system and that defendant’s unauthorized use proximately resulted in damage to plaintiff. As a result, the court granted eBay a preliminary injunction preventing Bidder’s Edge from crawling its site and scraping data. Presuming a lawyer is able to persuade a court that the human brain is an appropriate analogy to a computer system, perhaps a court would also grant a injunction preventing access to information in the brain.

Another article raises legal liability associated with brain-computer interfaces. The article raises the concerns over people with such devices battering someone. Who would be responsible — the interface users themselves, the makers of these, or the researchers who created them? Since the possibility of a faulty device enters the picture, this article raises the possibility of a future in which makers could be liable for contributing to the acts of users.

Hobbyists already have hacked a radio-controlled toy helicopter to control it via thought alone. This little toy is unlikely to cause much damage or injury to anyone with which it collides. However, when this technology scales up to larger vehicles, like a car, one can imagine parties pointing fingers in the event of an accident.

Do you need further persuasion that the world of brain-computer interfaces and dream-raiders like Cobb are close at hand? Consider Sammy Hagar, who experienced aliens plugging into him, uploading and downloading information just last week ….