The Law Society has published a report titled “Neurotechnology, law and the legal profession” which paints a picture of a legal sector that could be shaped by neurotechnology in the future. In this blog, we will unpick the Law Society’s report and try to make sense of this exciting new technology that the Law Society contends will have a huge impact on the legal profession.

What is neurotechnology?

Neurotechnologies are technologies that interact with the brain by monitoring and recording neural activity, and/or acting to influence it. This involves using methods or devices which interface with the nervous system to monitor or modulate neural activity. Current uses of neurotechnology include treating neurological conditions, such as Parkinson’s, with deep brain stimulation and treating stroke and tumour presence in the brain with electrophysiology.

What does the report cover?

The report considers the emerging ripples of impact in society and the potential challenges, opportunities and questions facing the legal profession arising from the use of such technology. The ethical, social, political and economic issues considered in the report paint a clear picture of the benefits of the use of neurotechnology such as the huge potential to alleviate suffering caused by neurological and psychiatric conditions. However, the report also raises concerns such as breaches to mental health privacy and the potential for manipulation due to access to brain data.

Like any new technologies, there are pros and cons. However, due to the nature of neurotechnology, any technological advances in this area are going to be widely reported upon and judged, amid calls by some for further regulation and control.

How does this relate to the legal profession?

The Law Society explains in detail how different elements of the profession will be impacted. We will explore these impacts in three sections:

  • Regulation, legal doctrine and human rights

The report states that it will be necessary to consider whether current regulatory systems are adequate in regulating neurotechnology that monitors and stimulates the brain for non-therapeutic purposes.

The Law Society also lists the wide-ranging impact this technology will have on various commercial practice areas such as employment, consumer protection and criminal law. These issues are complex and will require innovative solutions in the profession. For example, in criminal law, would it be acceptable in sentencing for the criminal justice system to monitor and perhaps intervene in an offender’s brain whilst they are serving sentences in the community? Whilst at present this is not a problem that needs to be solved, the Law Society’s report is clear that in the coming years neurotechnology is expected to develop at a staggering rate and issues such as these will need to be considered and ultimately regulated.

  • Legal education

The report also raises challenges that legal educators might start to face in relation to equity and academic integrity as neurotechnology develops. For example, what kinds of neurotechnological assistance are permissible in relation to assessment tasks? What if some students have access to performance-enhancing neurotechnology and others do not? These are questions with which future academic institutions and law firms may have to grapple.

  • Legal profession

The legal profession could be greatly impacted by developments in neurotechnology. One prediction is that clients may want to change the methods by which work is billed – with the attention-monitoring capacities of neurotechnology, billable hours could be changed to billable attention. A second change might be that legal professionals could try to gain an advantage over competitors by using neurotechnology to improve their workplace performance.

Comment

The Law Society’s report portrays neurotechnology as something that will have a transformative impact on the legal landscape in the future. In response to this, legal practitioners must rise to the occasion to attempt to maximise the upside and minimise the disadvantages of the technological developments outlined in the report.

Whether this technology has a significant impact on the legal profession is yet to be seen and it is fair to have some scepticism about whether neurotechnology will have the impacts outlined in the report. There is a lot of noise, such as from Elon Musk who predicted that Neuralink (his neurotechnology company) would have chips in human skulls by 2020. This turned out to be overoptimistic and human trials have not yet started. This area contains much uncertainty; however, one thing for sure is that this is an area of law worth watching.