The Law Needs to Address Cyborgs, Because We've Already Become Them

by Jason Koebler

When someone with an e-tattoo or an implanted biochip inevitably commits a crime, and evidence of that crime exists on that device within them, do they have a legal right to protect it? Do cyborgs have the same rights as humans?

It's an open question, but, perhaps surprisingly, it's one that the Supreme Court has already sort of tackled. Earlier this summer, Chief Justice John Roberts, in the case of Riley v. California wrote that "modern cell phones… 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."

In that case, the Supreme Court ruled cops couldn't search a cell phone without a warrant. Our cell phones don't make us cyborgs, but there's a fine line between the data contained on a cell phone, which is always on our body, and the data contained gathered by an e-tattoo, an implantable chip, or, hell, even a pacemaker.

"The more you take a thing with no rights and integrate it indelibly into a thing that we invest with rights, the more you inevitably confront the question: Do you give the thing with no rights rights, or do you take those rights away from the thing with rights?," Benjamin Wittes, a senior fellow at the Brookings Institution told me.

Today, he and Yale Law student Jane Chong released a paper about the law and policy implications of becoming a cyborg.

"Unless one specifically engineers the cyborg to resist such collection or interception, it will by default facilitate surveillance," Wittes wrote. And with it, society will, no doubt, change.

"A society of cyborgs—or a society that understands itself as on the cyborg spectrum—will have a whole different cultural engagement with the idea of electronic surveillance than will a society that understands itself as composed of humans using tools," he added.

As you might expect, there are no easy answers. And until this stuff is truly ruled on by the court system or written into policy by lawmakers, no one's sure how it will play out.

Back in 2011, Columbia law professor (and current candidate for Lieutenant Governor of New York) Tim Wu noted that we're taking the first "very confusing steps into what is actually a law of cyborgs as opposed to human law."

"What we're confused about is that this cyborg thing, you know, the part of us that's not human, non-organic, has no rights," he said. "But we as humans have rights, but the divide is becoming very small. I mean, it's on your body at all times."

That's why, in the Riley case, Roberts had such a visceral reaction to the search of a phone—partly because he uses one himself, and he's got it with him all the time.

Is he likely to have the same reaction if evidence of a robbery or a murder is contained within a DIY cyborg's implanted chip? Probably not, Wittes said.

"If someone gets an e-tattoo for fun or straps on a device to record everything he sees because he wants to, I think a lot of people will have the reaction that the law owes that person nothing," he said.

Does that have to be the case? Technological progress and body augmentation is going to be strictly tied with more data, and more data means more evidence—and more opportunities for surveillance.

In the United States, people still have the right to plead the FIfth Amendment; that right probably goes out the window when instead of merely having a memory of a committed crime, there's also data tying you to the deed on your Fitbit, or your Google Glass recordings, or your body chip.

It's easy to imagine someone's smart contact recording a crime; should law enforcement be allowed to get a warrant for the recording simply because he opted for vision correction that came with a camera installed? What if that data is on a pacemaker or a medical device, instead?

In other words, at what point does a cyborg lose his or her Constitutional rights?

"The more integrated they become, it's going to be less plausible to say 'this is just a human with rights using a machine with no rights,'" Wittes said. "At some point, we're going to cross a threshold here."