A collision of the law, technology, and the brain

You sit quietly in a chair as brain wave sensors are placed on your head. These are no ordinary sensors, though—they can also transmit waves to the brain. The attendant asks if you’re ready, and after a brief nod and smile, the attendant presses a button. Your brain is inundated with signals. You are immediately experience…perhaps whatever you want.

Sounds like science fiction, right? Or an Arnold Schwarzenegger movie. But according to futurist and physicist Dr. Michio Kaku, this may soon be a reality. In August, the Wall Street Journal published an essay by Dr. Kaku in which he outlined the progress science is making with the brain. As unbelievable as it sounds, scientists have already successfully “uploaded” memories to animals. How far away are we from the following scenarios?

  • Your mind and memories can be digitized and stored on physical media, perhaps for the purpose of restoration after an accident or injury? Or maybe just to let you “check out” for a number of years? (Check out the concept of “deadheading” in Cory Doctorow’s Down and Out in the Magic Kingdom.)
  • Memories can be created and uploaded to your brain—as Dr. Kaku suggests in his essay, letting you experience the vacation you never took.
  • Physical sensations such as pain can be uploaded to the brains of jurors in personal injury cases. (This idea came to me courtesy of our local federal magistrate judge, who shared Dr. Kaku’s essay with me.)

It’s not hard to start thinking of the potential legal issues that these and other scenarios raise. Who will retain the legal rights to your memories—true intellectual property? Will there be remedies for improper distribution of your memories? Will your heirs have access to those memories? Can you prohibit your heirs from having access to certain memories? Does “deadheading” constitute a form of assisted suicide? How do we assess the accurate depiction of pain that might be uploaded to a juror’s mind? Could a juror refuse to allow the memories to be erased since they are now part of her mind? Will appellate judges be able to experience memories received into evidence in order to assess the validity of damage awards?

For most of us, we will never have to confront or litigate these issues. But for our young people who are attending law school today, these might be the hot legal topics in their careers.

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