It’s my first post in a long time, and I appreciate Dan giving me the opportunity to talk and to listen here again as a guest on the Lounge. Thanks, Dan!
I have been thinking a lot (not alot) lately about technological enhancement of human functioning, also known as human augmentation. In other words, I’ve been thinking about cyborgs. I hope to think out loud here about cyborgs for a little while, and to listen to reactions to the things that I’m thinking about. I call this my “We, Cyborg” project.
I’m undertaking this project because I think we need to consider the various questions that are likely to emerge as technology becomes embedded into our persons. This is true across the spectrum of issues, from the low hanging fruit of technological security – who will be liable when our memory enhanced brains are hacked and our memories are stolen and distributed on the Internet? – to the more discrete need to apply our existing laws to our new technological abilities – if I have a memory chip embedded in my skull and wired to my brain, a chip that records what my eyes see, for example, will I be making an illegal copy of a movie I’m watching in the movie theater? My purpose in undertaking this project is not to define what is human and what is not, but rather to start us on the path of thinking about how these technologies will be integrated into our lives, our societies, and our legal structures.
What do I mean by cyborgs? The cyborgs that I have been thinking about are those that are (or were) primarily and biologically human. These human beings – I’ll refer to them as people or persons, because that’s what they are – become cyborgs when some element of technology is grafted into or onto their persons. To be cyborg technology, it must be actively involved in variously allowing, enhancing, enabling or preventing certain actions or abilities of or by the attached person. For my purposes, I make a distinction between those technologies that are a physical part of the person and those that are not, and in so doing take the side of those who think that there is something important in the barrier between the person and the outside world. I draw the internal/external boundary at the skin. Technology that “breaks” the skin fits within my definition. Technology that does not break the skin does not.
This is a controversial position, but it is not one that I am going to defend here and now. I will take it up at a later point, as my thoughts and reading on this point are still developing. I admit that there are times that I myself have problems with this definition, even within the limited ambitions I have for this project. Where they function similarly, why do I include a memory chip implanted within the skull, but not sensors worn on a band on the head? These are questions with which I am still grappling.
Within this context, however, I want to carve out two things that I most certainly do not mean by cyborgs. First, when I speak of cyborgs, I am not speaking about those things that are primarily machines imbued with some elements of biological functioning. I am not referring to a robot with human skin, for example, even if that human skin is living and grows. The Terminator is not my cyborg.
I am also not arguing, nor will I argue, that the technology we use that is not embedded within us, that does not “break the skin,” also makes us cyborgs. I find this argument fascinating, and it has been thoroughly made and defended by Andy Clark and others, and even the Supreme Court has playfully hinted that there may be something to this argument (Chief Justice Roberts wrote, “ . . . modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley v. California, p. 9 (2013)). But I do not adopt this argument because it is a fight I do not need to fight to investigate the questions that I want to investigate. This is because many of us are and for long periods of time have been cyborgs within my more limited definition. I do not need cell phones to be cyborg technology to make a convincing argument that cyborgs exist, and that they will increase in number with each passing year. I do not need to expand the definition to make my arguments about embedded technologies and cybersecurity, intellectual property, autonomy, privacy, and other areas of the law because “real” cyborgs are more than just science fiction or theory.
“Where are these cyborgs,” you ask? All around us.
Pacemakers are cyborg technology. People who have pacemakers in their bodies are cyborgs. Insulin pumps are cyborg technology. People who have insulin pumps connected to their bodies are cyborgs. Bionic eyes (or artificial retinas) are cyborg technology. People who rely on artificial (or non-biological, if you prefer) eyes are cyborgs. I will give additional examples of functioning cyborg technology as the project moves on, and I will focus on those technologies that actively interact with us and our bodies. More interesting in the context of this project are technologies with computer processors (and perhaps network connectivity), rather than those “set it and leave it” technologies. But a processor is not required for technology to be cyborg technology.
I have one final note as a preface to the posts to come. There are potentially important questions to ask about what embedding technology into our bodies will do to us. Will we still be human? Is there a point where the technology becomes “too much of us” and we become machines? Will the answer depend on whether we augment ourselves by choice, because we want to improve our abilities or change who we are, or whether that decision is made based on medical need? Will we need laws to protect those who choose to or need to embed technologies into their bodies?
As I’ve said, these questions are beyond the scope of what I hope to accomplish here, but that does not mean they are not important. They are. But for now I leave them to others and focus on the day-to-day practicalities of the coming cyborg revolution. I hope only to point to and think about areas of existing legal doctrine that will be challenged by the further development of technologies embedded in human bodies. This is something that we did (and are still doing) post hoc in relation to the Internet, mobile technologies, and to a large extent drones. I’m hoping we can get ourselves in front of this next development. At least a little.