Who controls the tech inside us? Budding biohackers are shaping ‘cyborg law’

cyborg law and rights of augmented humans karen sandler getty
Karen Sandler Getty

Karen Sandler has a complicated relationship with her pacemaker. On the one hand, the device has the power to save her life. On the other, it sometimes suddenly and unnecessarily shocks her, mistaking a slight aberration in her heartbeat as a call for help.

Sandler was pregnant during two of those occasions, when the pacemaker detected her heart palpitations (which aren’t abnormal in expecting mothers) and delivered an unwarranted jolt. Worried that the device would misfire again, Sandler asked the manufacturer for access to its source code, hoping to reconfigure the implant to suit her condition. The manufacturer denied her request.

“As the law stands, cyborgization promises to make us both more vulnerable and more powerful.”

“The only way that we could solve that problem was to have my cardiologist prescribe me heart medication, which slowed down my heart rate so much that I had a hard time walking up a flight of stairs,” Sandler tells Digital Trends. “The sole point of that medication was to prevent me from getting unnecessary treatment from my device.”

Sandler now serves as the executive director of Software Freedom Conservancy, a not-for-profit organization that promotes free and open source software, supports open source projects, and encourages policies more pertinent to the way we engage with technology in the present day.

She’s one of a handful of modern-day cyborgs fighting for control of the tech that’s in their bodies. This might seems like an esoteric issue — a topic that impacts the fraction of the population fitted with a medical device, prosthesis, or experimental implant — but as the number of people who are tethered to a device of some kind increases, cyborg rights and cyborg laws are bound to affect us all.

Cyborg society

We live in a society of cyborgs. Look at any bus stop or coffee shop — it’s clear we’re deeply, viscerally, compellingly intertwined with the technology around us. From the cellphone that’s rarely out of reach, to the myriad data and metadata that weave together tapestries of our behavioral patterns and whereabouts, tech tools have become disembodied digital organs, like little minds in the palm of our hands.

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blackzheep / 123RF

“As the law stands, our cyborgization — our reliance on a 24/7 technological interfaces, whether physically incorporated into our bodies or not — promises to make us both more vulnerable and more powerful,” says Jane Chong, a lawyer and co-author of a Brookings Institute report on cyborg law.

Cyborg right’s are not a new issue. For decades, people have equated the rights of cyborgs with the rights of humans in general.

“More vulnerable because we may be subject to new forms of compromise and exploitation, whether it’s our privacy that’s at stake or something else, like our right to make autonomous decisions regarding our health and health data. And more powerful because we may be able to put up new barriers when it comes to the government’s ability to access information that it could previously have obtained by way of, say, a search warrant based on probable cause.”

This newfound technological power and vulnerability may need a whole new set of laws and regulations, according to Chong, ones aimed at protecting individuals (their data and enhancements) in a society rife with surveillance and digitization.

A brief history of cyborg rights

Cyborg right’s are not a new issue. For decades, people have equated the rights of cyborgs with the rights of humans in general. In her 1984 essay, “A Cyborg Manifesto,” feminist and literary theorist Donna Haraway claimed with conviction that we “are all chimeras, theorized and fabricated hybrids of machine and organism; in short, we are cyborgs.”

The topic made national headlines in 2002, when Steve Mann, a Canadian engineering professor and longtime cyborg, who wears a web of wires and electronics to augment his senses, was accosted by airport security, strip-searched, and injured in the process. Beyond his physical and psychological distress, Mann calculated $56,800 in damages to his equipment. Ten years later, he was assaulted in a McDonalds in Paris, France because employees objected to his digital eye glasses.

Steve Mann, Sequential Wave Imprinting

And the first government-recognized cyborg was announced in 2013, when Neil Harbisson, a colorblind artist and co-founder of the Cyborg Foundation, whose cranial antenna implant lets him detect color, lobbied the United Kingdom to let him take his passport photo with his device attached.

But cyborg rights have only recently begun to be argued in America’s highest court.

In 2014, the United States Supreme Court ruled that police officers couldn’t search a cellphone that was seized during an arrest, because cellphones are such intimate parts of our being that it would undermine the Fourth Amendment. “Modern cellphones…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,” wrote Chief Justice John Roberts.

“People today have very few rights to the proprietary information implanted in them.”

The Supreme Court followed up that landmark decision with another one this June, ruling that police need to obtain a warrant to access cellphone data from carriers. By adopting digital-age privacy rules, the justices made the legal case for how our devices are extensions of our mind beyond the body. After previously referring to the cellphone as “a feature of human anatomy,” Roberts wrote that the cellphone “faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”

The rights of individuals to argument their bodies with technology is also being argued abroad. In March, an Australian biohacker named Meow-Ludo Disco Gamma Meow-Meow was fined $220 for breaching the terms of use of a public transport company, Opal Card, after he implanted the chip from his metro card into his hand. He was required to pay an additional $1,000 in court costs on top of that. But after appealing his conviction, a district court judge overturned the conviction, citing Meow-Meow’s good character and the “highly unusual [case] involving a unique set of circumstances.”

Neil Harbisson
Neil Harbisson (left), giving a talk at the Science Museum, London in 2015. Wikimedia

This case might no be as unusual as the Australian judge thinks. Biohackers around the world — not least among them, our own Emerging Tech editor — have embedded NFC chips and rice-sized RFID tags into the flesh of their hands, using the tiny implants to open apps, unlock doors, and store personal data.

Entire countries are even on board. Last year, Sweden began a trial using NFC implants for public transport. Around 1,500 test subjects had an NFC chip embedded under their skin, enabling them to check in at train stations simply by swiping their hand.

“Implants and other physical modifications are interesting because the body is in many respects a protected space under our laws,” Chong says. “We are going to see the emergence of a lot of gradations in that protection.”

Companies over consumers?

Historically, the company’s right to its proprietary information has trumped a consumer’s right to know the ins and outs of their device, according to Chris Hables Gray, a cyborg researcher at the University of California, Santa Cruz. Gray worries that new technologies that are more integrated with the human mind and body are still regulated as if they’re old technologies, with their clear distinction between what’s human and what’s machine.

“People today have very few rights to the proprietary information implanted in them,” Gray says. “It’s a real problem of capitalist priorities dominating over the rights of individuals to control their own destiny.”

cyborg law and rights of augmented humans surveilluminescent lights in motion
Surveilluminescent wand: When moved through space in a long-exposure photograph, it makes the sightfield of a surveillance camera visible. Wikimedia

Karen Sandler replaced her pacemaker after giving birth, opting for a new manufacturer, but still faces certain vulnerabilities that she says could be mitigated with access to the source code.

“Almost every pacemaker on the market now broadcasts by default,” she explains. “They have a wireless interface that’s always open to connection, and currently there’s no encryption on most of these devices so they’re entirely exploitable.”

“The fundamental issue is we need a new baseline of guaranteed rights.”

Pacemakers contain personal information — including a person’s name, heart condition, and doctor. A bad actor who decided to hack into a broadcasting implant could both access this information and manipulate the device to make it malfunction.

“Right now we basically have the worst of both worlds,” Sandler says. “We have no real security on these devices, which means that anyone with over-the-counter equipment can take control and deliver even fatal shocks … And we have code that is not available for us to review. So we have no transparency and no security.”

What cyborg rights might look like

A few quick fixes would help address Sandler’s concerns. Among them, she says consumers should have the right to not broadcast data from their medical devices. Source code should also be made available for review by researchers, who could be given access to the code under a non-disclosure agreement, allowing them to test for vulnerabilities, share their findings with manufacturers, and only go public if the company fails to fix the product.

For Chris Hables Gray, a much more comprehensive reworking of the law is in order, which grants broader liberties and freedom to all individuals. He laid those ideas out in his Cyborg Bill of Rights.

“The fundamental issue is that we need a new baseline of guaranteed rights that aren’t covered, but that we wish might have been covered, by the constitution or other statements of rights,” Gray says.

Linda MacDonald Glenn, a lawyer and bioethicist at California State University, Monterey Bay, agrees. She points out that laws evolve to reflect changing norms and insists that in our hyperconnected times we’ll need a significant shift towards laws that accommodate people and technology as one.

Accountability and responsibility may be some of the biggest hurdles for cyborgs going forward.

“Traditionally under the law there’s been this dichotomy,” she says. “Either you’re a person or you’re property. Perhaps it is time for the law to take this from a different approach. That is, rather than looking at it as a dichotomy, we might want to look at it as more of a continuum,” in which devices begin to blend with the personhood of their owner.

However, Glenn admits there could is a “dark side” to the continuum idea, which could lead to classifications of things as “not quite human” or “less than human.”

Questions about accountability and responsibility may be some of the biggest hurdles to emerge when shifting certain rights from companies to consumers, according to Kevin Warwick, a professor of cybernetics often regarded as the world’s first cyborg. Although Warwick supports Sandler’s right to inspect (and perhaps even alter) her pacemaker’s software, he points out how that might complicate questions of accountability if the device were to malfunction.

dt10 cyborgs are here the next steps will make you nauseous kevin warwick project cyborg
Kevin Warwick, the world’s first cyborg and a former Professor of Cybernetics at the University of Reading, England. Kevin Warwick

“There are all sorts of legal issues there if she did have the [source code] and she decided to reprogram it so it worked in a different way,” Warwick says. “Who has the responsibility if she subsequently became ill or even died from it? Who bears the responsibility if she has taken over?”

These are the types of questions lawyers and lawmakers will argue over as we push further into the digital age. Their answers will shape the way we live as increasingly technological beings.


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