Welcome to Degen Lawyer's Newsletter, where we bring you your weekly dose of legal insights, and regulatory updates in the emerging tech and law space. Our expert lawyers serve up curated analysis, hot takes, and expert commentary, sprinkled with a healthy dose of wacky and meme-worthy content. Enjoy!

In this week’s edition:

News in short:

1. India’s crackdown on deep fakes

   India is set to crack down on AI-generated deepfakes and misinformation with a new regulation that could impose financial penalties on creators and social media platforms. The government is working with industry stakeholders to develop actionable items within a very short time frame (10 days is the news on the street) to detect, prevent, and report deepfake content. Looks like all it took was for the celebrities to start hurting! Oops.

2. UK’s new guidelines to reinforce security in AI

   The UK has come out with ‘guidelines for secure AI system development’ aimed at providers of AI systems. Aimed at helping them build secure and responsible AI systems. The guidelines cover secure design, secure development, and secure operation and maintenance. The guidelines provide for a ‘secure by default’ approach and prioritise taking ownership of security outcomes for customers, embracing radical transparency and accountability, and building organisation structure and leadership so that secure by design is a top business property. This might mean that the doomsayers of AI have one less thing to be worried about, just 99 things left.

3. Australia to Amend Digital Payments Regulations

   The Australian government will introduce legislation to regulate digital payment services like Apple Pay and Google Pay. The legislation will bring these services under the same regulatory umbrella as credit cards and other payments! The move is in response to the rapid growth of digital wallets, especially among the younger population, with two-thirds of Australians aged between 18 and 29 using mobile payments. The amendments will also give a relevant ministry the power to subject a system or platform to special oversight in the event it presents a risk of “national significance”. It will be interesting to see if regulating digital payment on the same footing as traditional payment will lead to easier regulations and laws or more confusion.

Article of the week

The fascinating world of neurotech. Is it time to panic?

Mind control technology shall soon be available over the counter. No, I’m not talking about sci-fi Jedi mind tricks. I’m talking about neurotechnology! With the advent of AI, such technologies have progressed rapidly. This of course has raised alarm bells leading to strongly voiced concerns around neurorights, which, you guessed it, entails protecting human rights from technology capable of any nefarious interference with your brains.

But first, let's do a little deep dive (pun very much intended)

Neurotechnology is a wide term that covers any technology that records or interferes with brain activity. Such technology aims to provide greater insight into the brain or nervous system activity and can be used for research purposes, therapeutic applications or to enhance human functioning. It has various applications in medicine, wellness, education, cognitive functioning, behavioural sciences, military, sports and other allied fields.

Neurorights refers to a legal framework for human rights, specifically aimed at protecting the brain and its activity in line with advances in neurotechnology. Such rights encompass the ethical, legal, social or natural principles of freedom related to a person’s cerebral and mental domain, aiming to protect and preserve the human brain and mind.

But why does it need regulations?

At present Neurotechnology is rapidly evolving, due to which framing legislation is challenging. For instance, experimental brain imaging has gained traction in recent years, with extensive research in the area. Nearly 33.2 billion USD has already been invested in neurotechnology development as of 2021, as per the UNESCO. The technology has broken into the market leading to B2C sales of neurotechnology products for recreational and mental augmentation purposes. The effects of these technologies are unclear and their development and use are unregulated, leading to unprecedented risks to human rights, such as freedom of thought, and mental integrity amongst others.

Neurotechnology has far-reaching legal and ethical implications. For instance, the right to privacy in the case of neurotechnology has been a hotly contested debate. Another example is how neuroimaging can be used on accused individuals to determine guilt, which would be at odds with the right against self-incrimination. Surveillance is also a concern with neurotechnology and closely ties in with the right to privacy.

Regulators have to strike a balance not to let the horse bolt out of the stable but at the same time lock the stable altogether.

Chile has adopted legislation and a constitutional amendment to protect neural rights, becoming the first country to do so.

Chilean regulation - a comprehensive framework on neural rights

An amendment modified Article 19 of the Chilean constitution, providing recognition of ‘mental identity’ as a non-manipulable right against advancements in neurotechnology. It prohibits any scientific development which increases, decreases or disturbs the brain and its activity, without consent. The legislation provides for five rights:

1. Right to mental privacy

2. Right to free will

3. Right to just and equitable access to technological advancements

4. Right to personal identity, and

5. Protection against discriminatory algorithmic practices.

The legislation also prohibits forcing individuals to give their neural data and the trade of neural data. Interestingly however, donation for ‘altruistic’ purposes is allowed under the legislation.

Few other countries such as Spain, Colombia and Brazil have included neuro-data rights in their personal data protection laws.

International progress on neural rights

The Organisation for Economic Co-operation and Development (OECD) published its “Recommendation on Responsible Innovation in Neurotechnology” in 2019. It is the first international standard for governments and the industry, promoting scientific collaboration and stewardship, balancing it with ensuring safety and constantly monitoring misuse.

The United Nations General Assembly adopted resolution 51/3 relating to neurotechnology and human rights on 29^th September 2022 and instructed the advisory committee of the Human Rights Council to prepare a study on the impact, opportunities and challenges of neurotechnology with respect to human rights. The council’s efforts as of today are a work in progress, calling for inputs from relevant stakeholders on the matter.

In the European Union (EU), the Leon Declaration, of 2023 was adopted on neurotechnology, which adopted a human-focused and rights’ centric approach. The EU in 2020 funded research and development of neurotechnology in areas such as neurostimulation, neuroimaging, robotics and artificial intelligence applied to neuroscience. The declaration recognized that such tech raises several legal and ethical implications in its usage on human beings, pushes for increased public-private cooperation in the development of the technology and preparing standards for neurotechnology , including cybersecurity standards, with a focus on upholding human rights.

Conclusion

Neurotechnology might seem like a futuristic technology which does not require urgent regulation. However, given the far-reaching implications of the potential use cases of the technology, urgent regulation and consensus on an international framework and understanding are required to ensure that the harmful effects of such tech are contained before it is too late. The need for regulation is necessary to set the tone for the development of the technology to ensure that constitutionally protected human rights are respected by researchers and developers of neurotechnology. All countries need to take a leaf out of Chile’s Book. Given how this tech can go to the very root of what makes us human, too soon is not soon enough.

Did You Know?

The first AI-powered chatbot, ELIZA, made its debut in 1966. This is 48 years before Amazon’s Alexa and 15 years before personal computers became familiar to the general public! Named after the fictitious Eliza Doolittle from George Bernard Shaw’s 1913 film - Pygmalion; ELIZA was capable of human-machine interaction to create the illusion of human-human interaction.

However, it had limited capabilities. Most of its language capabilities came from scripts and were not based on vast data sets, given the technological limitations of the time. Yet this was a significant milestone given that it was able to successfully fool a human into thinking that it was interacting with another ordinary person. Ironically, ELIZA’s creator, Joseph Weizenbaum developed the program to demonstrate that human-machine conversation could not mimic human-human conversation. Disturbed by the success of his invention, he spent the rest of his life warning against the dangers of AI. Talk about an ominous way to start things off! I hope we don’t get to a point where we look back on his story as a cautionary tale!

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