Louis Brandeis and the Brain-Computer Interface

As we approach the 50th anniversary of the brain-computer interface (BCI) next June, we’re learning as much as we can about the current state of the BCI. We’re also exploring where these thought-reading technologies are taking us, asking experts to give us their best projections for 2033. That’s when we’ll observe the 60th anniversary of the BCI.

 

Our goals are to:

  • Help steer the development of these technologies in directions that increase human dignity, freedom, and happiness;
  • Give our children and grandchildren the most accurate possible depiction of the world in which they’ll be living in ten years.

 

The BCI Today and Tomorrow

Kernel Flow is best described as a miniature TD-fNIRS scanner that’s worn on the head in a futuristic helmet. It uses picosecond laser pulses and detectors to estimate photon scattering and absorption in tissues in the brain. That captures changes in blood oxygenation correlated with the firing of neurons, which enables AI algorithms to “hear” and make sense of our thoughts.

If the BCI is this advanced today, where will it be in ten years? Will we all have one?

Kernel Chief Technology Officer Ryan Field sees a day when “using a brain interface will become as common as picking up your phone.”

Imagine going to your local Verizon, Spectrum, or Kernel store to try out the latest “smart helmet” or “smart cap,” which is likely to come with an augmented-reality heads-up display (also known as a HUD, which we can see in development today in cars and industrial glasses).

“We’ll interface with the world differently,” said Robert Geraci, Professor of Religion and Technology at Manhattan College in a recent interview. “We’ll do it through a HUD that gives us immediate intellectual access to much of the world’s information. We’ll get real-time advice on the costs of what we’re up to, and we’ll find ways to think long-term because we’ll see that’s in our own interests — not least because genetic intervention will likely lead to longer lifespans.”

“AI gives us a chance to evaluate decisions faster and with more variables to consider,” he continues. “As the BCI evolves and increases our ability to access technology, we’ll have a greater opportunity to intervene in the world productively.”

 

What About Privacy?

When we start firing picosecond laser pulses into the brain to read our thoughts, there’s no telling what insights those who would like to know what’s happening in there will find. The potential threat to a person’s privacy is obvious.

In an earlier article, I predicted that pilots will be prime early candidates for BCIs. Airlines are hugely incentivized to develop neural ecosystems that better support flight crews in dealing with emergencies. Airlines also will want to constantly monitor their pilots’ state of mind, ensuring that they’re fully alert, sober, and not suicidal.

Since 2013, more than 500 passengers have been killed in crashes caused by pilot suicides. Between four and eight percent of pilots have reported in surveys they’ve had suicidal thoughts. Since their employment is at stake, pilots can be reluctant to seek treatment for mental maladies.

In a recent interview with AI and Faith, Amy Gajda kindly provided her perspective on this issue. A journalist-turned-lawyer specializing in privacy and media law, Amy is the Class of 1937 Professor of Law at Tulane Law School and author of the highly acclaimed  Seek and Hide: The Tangled History of the Right to Privacy.

While in Seek and Hide Amy deals mostly with matters of press freedoms and privacy, she’s interested in the issues the BCI is raising and enjoys discussing it with her students, who she describes as “already deeply worried about what technology might learn about them without their full understanding.”

 

Louis Brandeis and the BCI

Louis Brandeis was our great thinker in translating the constitutional values of privacy and free speech in a technological age. He “necessarily saw things through both a tort law lens and a criminal law lens,” says Amy.

It was Brandeis who:

  • Published “The Right to Privacy”in 1890 as a response to the intrusions made possible by the arrival of “instantaneous photographs” (i.e. the Brownie camera) and tabloid journalism. That article in the Harvard Law Review, which he launched, is the most referenced law article ever published;
  • First called for warrantsas a necessary step for law enforcement in tapping a suspected criminal’s phone.

In a case involving pilots and airline-mandated BCIs, Amy started with the assumption that pilots would agree to such intrusion through a contract.

“If the pilots fully understood how the information would be used and decided to work anyway because they too understood the need for safety, I suspect that even Brandeis would be fine with that. The balancing there between safety and privacy would be fine with him because the pilots would know what they were getting into.”

 

“But if this were done too expansively in a way that revealed information for its own sake without true consent, then Brandeis would be horrified and would surely rule in favor of privacy.”

“I say this because of the lines that he and Sam Warren wrote in a torts sense in “The Right to Privacy” about technology and privacy invasions: that the “instantaneous photographs” and the “[n]umerous mechanical devices” in current use and under development would one day reveal a person’s most intimate secrets.”

“But he’d also feel precisely the same way about such technology in a criminal context.  In Justice Brandeis’s important and now highly influential dissenting Supreme Court opinion on police wiretapping, he worried about technology and its potential: that “[s]ubtler and more far-reaching” technological advancements would someday surpass even the “evil incident to invasion of the privacy of the telephone.” He predicted that at some point nefarious people “without removing papers from secret drawers, [would] reproduce them in court” and, in doing so, reveal “the most intimate occurrences of the home.”

Quite remarkably, Amy continues, “Brandeis suggested that there would come a day when ‘advances in the psychic and related sciences’ would allow others to ‘explor[e] a man’s unexpressed beliefs, thoughts, and emotions’ and he was horrified at that.”

 

In other words, Brandeis saw smartcaps and smart helmets coming, and those technologies  concerned him. But his concerns never made it into the dissent he wrote in Olmstead vs. United States.

“One of his law clerks told him that such a thing could never happen, that it was impossible,” she says.  “But now, of course, we have BCI.”

Amy adds:

“Now we understand even more how very visionary and how very right Brandeis was.  His writings teach us to be wary and to think broadly and beyond the moment about how technology and its advancements might invade privacy and urge us to decide that many times people and their privacy interests are more important than whatever we might learn from a privacy invasion.

“Brandeis also reminds us that the Founders, in his words, ‘sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.’  And that the ‘makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness’ and recognized the ‘significance of man’s spiritual nature, of his feelings and of his intellect.'”

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