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How does brain-computer interface technology present challenges for labour law in New Zealand?

Peter Upson
p. 6-15
Cet article est une traduction de :
La technologie d’interface cerveau-ordinateur, un défi pour le droit du travail en Nouvelle-Zélande ? [fr]

Résumés

Certaines publications dressent un portrait décourageant de l’avenir du travail. L’automatisation remplacerait assez rapidement les travailleurs du secteur industriel et des services, et l’intelligence artificielle évincerait les travailleurs du savoir du secteur public, tels que les enseignants, les infirmières et les fonctionnaires. Les récentes annonces d’avancées technologiques ont contredit ce discours pessimiste. Neuralink a récemment mis en place un système de fils de polymère pouvant être implantés dans le cerveau, et ainsi contrôler certaines fonctions informatiques. Plutôt que de remplacer les humains par des machines, les interfaces cerveau-ordinateur (ou BCI pour Brain-Computer Interface) pourraient permettre la symbiose entre les premiers et les secondes. Les travailleurs humains auraient accès à la puissance physique des robots et à la puissance intellectuelle de l’intelligence artificielle générale. Cependant, si cette technologie d’interface cerveau-ordinateur donne de l’espoir à ceux qui s’inquiètent de la perte imminente de leur emploi, elle pose d’importants problèmes juridiques. Ce document abordera les trois difficultés les plus préoccupantes, à savoir le risque de discrimination à l’encontre des travailleurs qui ne peuvent - ou ne veulent - pas accepter les prothèses neurales, l’atteinte à la vie privée des travailleurs, et la menace d’une coercition par les machines.

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1For those that believe that human workers will have to compete against machines for jobs Brain Computer Interface (BCI) technology seems to offer an exciting solution. Instead of machines, replacing humans in the workplace humans can use BCI to increase their manual and cognitive labour in order to achieve parity with their or outcompete machines. Therefore humans need not fear job loss due to technological innovation. However this optimistic view may be premature. BCI technologies pose several questions for New Zealand labour lawyers to consider.

2Part I of this paper provides some background on BCI technology (I). Part II details the problem of employment discrimination, as certain workers will be unable or unwilling to use BCI (II). Part III demonstrates the potential negative effects that BCI will have on workers’ privacy (III). Finally, Part IV describes the emerging problem of malicious use of BCI technology for cognitive compulsion of workers (IV).

I - Background on BCI technology

  • 1 R. Talwar, « The future of work - a worst case scenario », 7 March 2018, Trade Arabia: http://www.t (...)
  • 2 Y. Cooper, « Automation could destroy millions of jobs. We have to deal with it now », 6 August 201 (...)

3A certain amount of context is needed before discussing the problems BCI pose to New Zealand labour lawyers. The rapid advance of workplace technology is causing alarm to some commentators on employment relations1. The automation of manual labour is seen as a threat to the job security of trade union members in the industrial and service sectors2.

4Similarly, the use of artificial intelligence to undertake cognitive labour seems to threaten the job security of knowledge workers in public sector unions such as teachers, nurses and public servants3. Therefore a public narrative is rapidly developing - that human workers (especially union members) will have to compete with machines for jobs.

5However recent technological developments seem to challenge this narrative. Several major companies have announced advances in brain-computer interfaces (BCI).

  • 4 A. Gonfalonieri, « A Beginner’s Guide to Brain-Computer Interface and Convolutional Neural Networks (...)

6Brain-computer interfaces are defined as « devices that enable its users to interact with computers by mean of brain-activity only, this activity being generally measured by Electroencephalography (EEG) »4.

  • 5 D. Etherington, « Elon Musk’s Neuralink looks to begin outfitting human brains with faster input an (...)
  • 6 J. Mark, « Elon Musk’s Neuralink Is Sci-Fi Made Real », 30 August 2019, Forbes: https://www.forbes. (...)
  • 7 Ibid.
  • 8 J. Timmer, « Elon Musk’s Neuralink: Both an evolution and a plan for radical change », 13 August 20 (...)

7Elon Musk the founder of Tesla and SpaceX made an announcement several months ago describing a new technology developed by his company Neuralink. Neuralink has successfully created brain scanning polymer threads and a machine to implant them into human brains5. These threads measure 10 to 40 microns in width which makes them thinner than a human hair6. Importantly they are so thin that they can « penetrate brain tissue without puncturing blood vessels »7. These threads will be connected to a small chip that will be implanted into the skull8.

  • 9 I. Asher Hamilton, « Inside the science behind Elon Musk’s crazy plan to put chips in people’s brai (...)
  • 10 J. Timmer, op. cit.
  • 11 J. Mark, op. cit.

8The threads will be inserted using a surgical robot that resembles a sewing machine9. This robotic insertion technique also decreases the chance that blood vessels will be damaged by thread insertion10. Neuralink claims that the final product could have as many as 1000 threads and 10 chips11.

  • 12 J. Etherington, op. cit.
  • 13 Ibid.

9In addition, Neuralink is working on a way to insert the threads using a laser instead of a surgical robot which will reduce the surgical footprint and pain caused by the insertion12. Neuralink presented data from its animal trials showing that it had increased data transfer rates ten times more than any other conventional BCI sensors13.

  • 14 J. Timmer, op. cit.

10When Elon Musk first discussed the idea of launching a BCI company he said it was « motivated by his concerns about AI ending up hostile to humans: providing humans with an interface directly into the AI’s home turf might prevent hostilities from developing »14.

  • 15 J. Etherington, op. cit.

11At the recent announcement of this new technology he was quoted as saying he was trying to « achieve a sort of symbiosis with artificial intelligence »15.

  • 16 N. Cohen, « Zuckerberg wants Facebook to build a mind-reading machine », 7 January 2019, Wired: htt (...)
  • 17 Ibid.
  • 18 Ibid.
  • 19 Ibid.

12In 2017 Facebook announced that it was developing wearable BCI technology to allow people to type with their thoughts16. In 2019 in an interview at Harvard University Mark Zuckerberg eagerly expounded on this research17. He related how brain scan reading technology allows a computer to distinguish if a person is thinking of an elephant or a giraffe18. Facebooks BCI would use similar techniques19.

13A person would imagine themselves speaking and the words would appear on the computer20. In addition to this Facebook also bought a BCI company called CTRL in 2019 at a price rumoured to be in the high hundreds of millions21. This company manufactures small wristbands that record the electrical impulses in muscle fibre and renders them as actions on a computer screen22.

II – Discrimination

  • 23 S. Burwell, M. Sample et E. Racine, « Ethical aspects of brain computer interfaces: a scoping revie (...)
  • 24 Ibid., p. 24.
  • 25 Ibid.

14Discrimination that could result from the widespread use of BCI’s is most often discussed in relation to how it could increase social inequality23. The presumably prohibitive costs of early mass market BCI devices could mean that they are only available to the very wealthy24. As BCI devices will most likely increase the earning potential of their owners this could exacerbate wealth inequality25.

  • 26 L. Kellaway, « How the Computer changed the office forever », 1 August 2013, BBC: https://www.bbc.c (...)
  • 27 Ibid.

15However, this popular perception ignores the fact that most New Zealanders will probably encounter a BCI for the first time in the workplace26. As occurred before with most new technology (telephones, computers etc) employers will most likely purchase BCI devices for commercial use before the average New Zealander can afford to purchase their own personal BCI27.

  • 28 E. Kelley, « International Appeal - Scientists call for Protection from Non-ionizing Electromagneti (...)
  • 29 Ibid.
  • 30 N. Cohen, op. cit.

16Many workers however will be unable or unwilling to use a BCI. For surgically implanted BCI some people may be precluded from receiving them due to their medical status. In addition, the radical nature of brain surgery will presumably dissuade many others from receiving the surgically implanted BCI. Even for wearable BCI there may be people unable to safely use them and there may others who have a legitimate fear of that amount of electrical equipment worn on their head or torso. In recent months 250 scientists have sent a petition to the World Health Organization warning of the danger of ubiquitous use of cell phones and wireless headphones28. These devices generate radiofrequency radiation and extremely low frequency electromagnetic fields which these scientists warn could be hazardous to human health29. If this danger can come from devices like cell phones and wireless headphones presumably it can also come from the electronic skullcaps and wristbands Facebook is proposing30.

17The problem is that workers who are willing and able to use BCI will presumably outperform their non-using counterparts in both manual and cognitive labour. This will create an incentive for employers to discriminate against those unwilling or unable to use BCI.

  • 31 Human Rights Act 1993.

18Refusal or inability to use a human enhancement technology is not currently a recognized ground of discrimination in New Zealand law. However indirect discrimination is illegal under the Human Rights Act 199331. This new form of discrimination would arguably meet the criteria of indirect discrimination.

  • 32 Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218 (HC).
  • 33 Ibid., p. 219.
  • 34 Ibid.

19In Northern Regional Health Authority v Human Rights Commission, the employer sought to limit the number of doctors would could receive certain benefits and subsidies32. It did so by only giving these benefits and subsidies to doctors that had medical degrees from New Zealand33. The employer’s purpose in doing this was to try to stop too many doctors settling in the region34.

  • 35 Ibid.

20However, the indirect result was that it ended up discriminating against doctors based on their nation of origin35.

  • 36 Ibid., p. 220.

21The Court used a three-stage test to determine if indirect discrimination had occurred as a result of the policy of the employer36.

  • 37 Ibid., p. 221.
  • 38 Ibid.
  • 39 Ibid.

22First, does the policy meet a genuine need of the business37? Is the policy suitable for reaching the objective desired by the employer38? Is the policy necessary for reaching the objective39?

23In terms of BCI in the workplace does it meet a genuine need of the business? The answer of course is highly contextual on the business. However, it is important to note that virtually no business on earth is currently dependent on BCI for its existence. There may be businesses that are created as a result of BCI in the future that are dependent on it for their existence. But any current business or industry that exists without BCI will strain credulity if it claims in the future that it is a genuine necessity for its business.

24Secondly, performing brain surgery or covering a worker’s head in electronic equipment is arguably not the most suitable way to reach the objectives desired by a business. Finally, BCI will not be the only technology that could radically increase productivity in the future. There will presumably also be vastly improved software and hardware products that could also dramatically increase the profits of business.

25Therefore, refusing to hire or promote workers because of their inability or unwillingness to use BCI could be seen as a form of indirect discrimination. The employers have other technological options they could use to increase profits and the BCI option is quite an extreme strategy to adopt.

26Ideally however workplace relationships should never have to reach this stage. Widespread use of workplace BCI plainly poses a risk of discrimination against those who do not use it. Therefore, the best solution would be for Parliament to amend relevant human rights and employment laws to address this new technology.

III - Privacy

  • 40 W. Sententia, « Neuroethical Considerations: Cognitive Liberty and Converging Technologies for Impr (...)
  • 41 M. Ienca, « Preserving the Right to Cognitive Liberty », 1 August 2017, Scientific American: https: (...)

27BCI use in the workplace raises the question of cognitive liberty. Cognitive liberty is the right of an individual to govern their own cognition40. Cognitive Liberty has two important features - a person’s right to keep private thoughts private and a person’s right to not have their cognition compelled to do something (discussed in the next section)41.

28The threat to employee’s privacy posed by BCI use in the workplace is extreme. As the technology improves it will literally have the capacity to « read minds »42. Already there are privacy concerns raised by the current iterations of BCI technology. In 2008 in India a woman was convicted of murder based on the results of a brain scan43.

  • 44 Privacy Act 1993, section 6.
  • 45 Privacy Act 1993, section 6 Principle 4.

29Under New Zealand law employers are bound by the Information Privacy Principles found in section 6 of the Privacy Act 199344. BCI technology seems to gravely breach the fourth Information Privacy Principle. The Principle states that information should not be collected in ways that « intrude to an unreasonable extent upon the personal affairs of the individual concerned »45. Employees brains store their most personal information within their brains.

30All of the details about their political and religious beliefs, their sexual history and their worst mistakes are stored in their brains. An employer’s use of a machine that would collect this information cannot plausibly be said to be a reasonable intrusion into their personal affairs.

  • 46 Case Note 38463 [2002] NZPrivCmr 11.

31There exists no case law related directly to BCI and the fourth Information Privacy Principle. However, Case 38463 demonstrates how seriously this principle is taken by the Privacy Commission46. A business directed their security guard to search the bags and cars of employees as they entered and left the premises. The business stated this was to prevent the theft of large expensive items such as laptops and scales.

32The Privacy Commissioner decided that the business had the right to do this. However, the Privacy Commissioner expressed concern that the security guard was also searching handbags which were to small to carry out the aforementioned items. Therefore, the search of handbags was an unreasonable intrusion into the private affairs of the employees.

33The business then agreed to stop searching handbags. Presumably if the Privacy Commission interprets the unnecessary searching of handbags to be a breach of Principle 4 it would consider the scanning of employee’s thoughts to be the same.

34Once again a logical extension of the law shows how BCI can easily breach an employee’s legal rights. However, the best solution would be if the legislature were to regulate how the Information Privacy Principles apply to BCI.

IV - Cognitive Compulsion

  • 47 M. Ienca, op. cit.

35The problem of cognitive compulsion (or more dramatically mind control) is raised by the new advances in BCI. Currently BCI only works in one direction meaning it translates thoughts into computer code47.

  • 48 Ibid.

36Any information the computer gives back to user is interpreted by their eyes and ears. However eventually whatever method the BCI uses to extract data from a human brain will be developed enough to send data directly back into the brain48.

  • 49 Ibid.
  • 50 Ibid.

37As discussed in the section above one of the two features of cognitive liberty is the right of an individual not to have their cognition compelled to do something49. Freedom from cognitive compulsion is usually discussed in relation to civil and political rights as it would be the ultimate tool of oppression for an authoritarian government. However, it is also a vitally important workplace right50.

38Consider the following scenario – a worker is operating a machine on a production line using a BCI. The BCI reads the workers thoughts and sends them to the computer integrated in the production machine. This computer then directs the machine to operate in a manner consistent with the workers thoughts.

39All of this is happening in microseconds. The worker then mentally directs the production machine to do something against company policy. The computer recognizes this error and does not perform the action. Instead, it sends back data to the worker’s mind alerting them to the error. Instantaneously the worker corrects the error and returns to operating the production machine correctly.

40A traditional error recognition system would be either a human supervisor or an automated sensor that alerted the worker to their error. The worker would perceive this warning, think about it and then decide what to do. This could all happen quite quickly.

41However, it could never happen at the speed of microseconds like with a BCI. If data being received directly into their brain is happening at a speed, so fast the worker cannot even consciously think about their reaction then arguably, they have no choice over that reaction. Therefore, they are being compelled to do something they may not wish to do by their employer.

42Such a system might be beneficial in circumstances relating to the health and safety of the worker or other people. If the worker is doing something that could make the machine explode it could be useful for the machine to automatically prompt the worker to stop doing that action.

43However presumably most union members would feel differently about it if the machine was prompting the worker to work faster when they were fatigued.

  • 51 Christchurch City Council v Davidson [1997] 1 NZLR 275 (CA).
  • 52 Crimes Act 1961, section 98.

44The right to cognitive liberty is not explicit in New Zealand law. However, it is implicit in all of it. It was held in Christchurch City Council v Davidson that an employment contract cannot « override the law of the land »51. Forcing someone to do a task against their will is plainly slavery. Under section 98 of the Crimes Act 1961 slavery is illegal in New Zealand52.

45This straightforward interpretation however was never envisaged to apply to instantaneous communication between a computer and a human brain. As discussed above an instantaneous prompt to action is sometimes in the best interest of everyone even the employee.

46Therefore, as BCI technology develops to not only receive human thoughts but send data into a human brain there will need to be strict limits as to when this is appropriate.

47As a starting point it seems obvious that the only time a human user should be prompted to do something without their consent is to protect themselves or others from danger. Any other form of correction or command should be presented in a way that human user has time to consider and then decide of their own free will what to do.

48For instance, in the scenario described above the computer should not send the error message directly into the user’s brain but instead display it on a screen or announce it through a speaker.

49Most importantly the cornerstone of any legislation governing cognitive liberty must be that there is a human right to govern one’s own cognition. Without strong protection for cognitive liberty almost all other universal human rights will be impossible to safeguard.

50Therefore, once again there is an urgent need for new legislation that specifically addresses the threat of BCI and protects the freedom from cognitive compulsion.

Conclusion

51BCI technology would increase human workers ability to compete with the manual and cognitive powers of machines. At the same time this human enhancement would incentivize discrimination against any worker who did not use it. The cognitive and physical advantages of merging human consciousness with computers would be immense. But the sacrifice required would the end of privacy even within a person’s own mind. The productivity increases offered by BCI are tantalizing.

52However, they are not the only technology that could offer such results. The trading of free will for economic productivity is not a reasonable expectation for employers to make of their employees. Such a situation is little short of human slavery.

53Brain-computer interfaces seem to offer a viable and tempting solution to the job scarcity that might be caused by automation and artificial intelligence.

54However, if this technology is widely adopted in unionized workspaces union members might find that while it brings job security this comes at the expense of their fundamental human rights.

55As the colloquial saying goes they would be « cutting off their nose to spite their face ».

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Notes

1 R. Talwar, « The future of work - a worst case scenario », 7 March 2018, Trade Arabia: http://www.tradearabia.com/news/REAL_337585.html

2 Y. Cooper, « Automation could destroy millions of jobs. We have to deal with it now », 6 August 2018, The Guardian: https://www.theguardian.com/commentisfree/2018/aug/06/automation-destroy-millions-jobs-change

3 R. Gloy, « How AI threatens white-collar jobs », 8 October 2018, Technologue: https://www.technologist.eu/the-threat-to-white-collar-jobs/

4 A. Gonfalonieri, « A Beginner’s Guide to Brain-Computer Interface and Convolutional Neural Networks », 26 November 2018, Towards Data Science: https://towardsdatascience.com/a-beginners-guide-to-brain-computer-interface-and-convolutional-neural-networks-9f35bd4af948

5 D. Etherington, « Elon Musk’s Neuralink looks to begin outfitting human brains with faster input and output starting next year », 17 July 2019, TechCrunch: techcrunch.com/2019/07/16/elon-musks-neuralink-looks-to-begin-outfitting-human-brains-with-faster-input-and-output-starting-next-year/

6 J. Mark, « Elon Musk’s Neuralink Is Sci-Fi Made Real », 30 August 2019, Forbes: https://www.forbes.com/sites/jonmarkman/2019/08/30/elon-musks-neuralink-is-sci-fi-made-real/#5cb84f3b4e2f

7 Ibid.

8 J. Timmer, « Elon Musk’s Neuralink: Both an evolution and a plan for radical change », 13 August 2019, Ars Technica: https://arstechnica.com/science/2019/08/elon-musks-neuralink-both-an-evolution-and-a-plan-for-radical-change/

9 I. Asher Hamilton, « Inside the science behind Elon Musk’s crazy plan to put chips in people’s brain and create human-AI hybrids », 6 October 2019, Business Insider Australia: https://www.businessinsider.com.au/we-spoke-to-2-neuroscientists-about-how-exciting-elon-musks-neuralink-really-is-2019-9?r=US&IR=T

10 J. Timmer, op. cit.

11 J. Mark, op. cit.

12 J. Etherington, op. cit.

13 Ibid.

14 J. Timmer, op. cit.

15 J. Etherington, op. cit.

16 N. Cohen, « Zuckerberg wants Facebook to build a mind-reading machine », 7 January 2019, Wired: https://www.wired.com/story/zuckerberg-wants-facebook-to-build-mind-reading-machine/

17 Ibid.

18 Ibid.

19 Ibid.

20 Ibid.

21 V. Tangermann, « Assuming CTRL », 24 September 2019, Futurisme: https://futurism.com/the-byte/facebook-brain-computer-startup

22 Ibid.

23 S. Burwell, M. Sample et E. Racine, « Ethical aspects of brain computer interfaces: a scoping review », 2017, vol. 18(1), BMC Medical Ethics, p. 60.

24 Ibid., p. 24.

25 Ibid.

26 L. Kellaway, « How the Computer changed the office forever », 1 August 2013, BBC: https://www.bbc.com/ news/magazine-23509153

27 Ibid.

28 E. Kelley, « International Appeal - Scientists call for Protection from Non-ionizing Electromagnetic Field Exposure », 21 September 2019, EMF Scientist : https://www.emfscientist.org/index.php/emf-scientist-appeal

29 Ibid.

30 N. Cohen, op. cit.

31 Human Rights Act 1993.

32 Northern Regional Health Authority v Human Rights Commission [1998] 2 NZLR 218 (HC).

33 Ibid., p. 219.

34 Ibid.

35 Ibid.

36 Ibid., p. 220.

37 Ibid., p. 221.

38 Ibid.

39 Ibid.

40 W. Sententia, « Neuroethical Considerations: Cognitive Liberty and Converging Technologies for Improving Human Cognition », 2004, vol. 1013, Annals of the New York Academy of Sciences, p. 223.

41 M. Ienca, « Preserving the Right to Cognitive Liberty », 1 August 2017, Scientific American: https://www.scientificamerican.com/article/preserving-the-right-to-cognitive-liberty/

42 Ibid.

43 A. Saini, « The brain police: judging murder with an MRI », 27 May 2009, Wired: https://www.wired.co.uk/ article/guilty

44 Privacy Act 1993, section 6.

45 Privacy Act 1993, section 6 Principle 4.

46 Case Note 38463 [2002] NZPrivCmr 11.

47 M. Ienca, op. cit.

48 Ibid.

49 Ibid.

50 Ibid.

51 Christchurch City Council v Davidson [1997] 1 NZLR 275 (CA).

52 Crimes Act 1961, section 98.

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Pour citer cet article

Référence papier

Peter Upson, « How does brain-computer interface technology present challenges for labour law in New Zealand? »Revue de droit comparé du travail et de la sécurité sociale, 4 | 2021, 6-15.

Référence électronique

Peter Upson, « How does brain-computer interface technology present challenges for labour law in New Zealand? »Revue de droit comparé du travail et de la sécurité sociale [En ligne], 4 | 2021, mis en ligne le 31 décembre 2022, consulté le 16 juin 2025. URL : http://journals.openedition.org/rdctss/2600 ; DOI : https://doi.org/10.4000/rdctss.2600

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Auteur

Peter Upson

BSocSc, LLB, LLM(Hons), Committee Member of New Zealand Labour Law Association.
Research topics : New innovations in Brain Computer Interface technology, New Zealand Labour Law, New Zealand Employment Law.

Publications :
~ P. Upson, « La technologie d’interface cerveau-ordinateur, un défi pour le droit du travail en Nouvelle-Zélande ? », Revue de droit comparé du travail et de la sécurité sociale, 2021/1, p. 118.
~ P. Upson, « La réglementation en matière de dépistage des drogues sur le lieu de travail en Nouvelle Zélande », Revue de droit comparé du travail et de la sécurité sociale, 2020/2, p. 36.

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