We Need a Legal Framework for Biohacking Our Brains

Do we need a legally protected right to augment our own brains? If so, what would the guiding ethical principles look like? California think tank Institute for the Future figures we’ve got about 10 years before society starts bumping up against these kinds of questions.

As chugging coffee at work and sneaking Adderall for cram sessions quickly gives way to brain-booster drugs, neural implants, augmented reality gadgets, transcranial stimulation (i.e. DIY brain zappers), mind uploading, and future technologies not even conceived yet, neuroenhancement is predicted to be a billion-dollar industry already.

"There's an enormous potential for chaos," wrote Institute for the Future’s Jamais Cascio. "The legal and political aspects cannot be ignored."

And so as part of the institute’s 2014 10-Year Forecast report, Cascio drew up a legal framework to define the ethically hazy right to self-modification and prevent abuse of biohacking technology. It's dubbed the 'Magna Cortica.' (The Atlantic has more on the forecast report itself.)

The constitution of sorts is meant as more of a conversation-starter than actual proposed law—a chance to get bioethicists and policymakers thinking about the inevitable legal and ethical complications of mainstream cognitive enhancement.

It poses questions like: Will posthuman brainpower be considered an unfair advantage in schools or workplaces? Should parents be allowed to neuroenhance their children without consent? Will people have to publicly disclose if they've been cognitively modified?

"We are almost certain be facing these questions, these crises and dilemmas, over the next ten to twenty years," wrote Cascio. "As long as intelligence is considered a competitive advantage in the workplace, in the labs, or in high office, there will be efforts to make these technologies happen."

The Magna Cortica, "version 1," protects:

1. The right to self-knowledge. (Basically, to measure and quantify your own brain, a relatively uncontroversial proposal.)

2. The right to self-modification. (There’s already a legal fight over body modifications, as innocuous as ear piercings and tattoos and more extreme like bionic body parts.)

3. The right to refuse modification. (As Cascio wrote, "Refusing cognitive augmentation may come to be considered as controversial and even irresponsible as the refusal to vaccinate is today.")

4. The right to modify/refuse to modify your children.

5. The right to know who has been modified.

The last point is the most interesting, in my opinion. It makes sense if you think of it like athletes getting juiced up on steroids or "techno-doping" with high-tech gear: does it give an advantage? Plus, it's one thing when doping is done illicitly, but it becomes even more complex if drugs and gadgets are being manufactured legally and specifically for self-augmentation.

So, assuming the 1-4 are upheld and brain hacking isn’t banned outright, what happens then? If the biohacking trend progresses unchecked, would we wind up with a class split between "natural" and "modified" people? Would a new form of inequality be forged? Would people have to check a box for "N" or "M" on a college application form?

The case for wanting transparency is understandable. As Cascio pointed out, you'll probably want to know if your bus driver, or surgeon, or child's teacher is on brain drugs. But on the other hand, wouldn’t that mean a violation of privacy?

The right to know if someone's brain has been artificially enhanced would require forcing people to disclose their modifications, which sounds a lot like something people have the right to keep confidential, like medical history.

Then again, augmentation that can fundamentally alter a person's abilities is something people are going to want to know about—and, in the United States at least, likely sue over. So if we don’t nail down some guiding principles in the boardroom, these sticky scenarios might play out in the courtroom instead.