Regulating Brain–Computer Interfaces: Ensuring Soft Law Does Not Go Flat

Abstract

Novel neurotechnologies such as brain-computer interfaces aim to offer new treatment options for those suffering with mental or neurological diseases or defects. At the same time, legal tools to regulate and manage these advancements remain underdeveloped in light of various policy challenges. Soft law mechanisms are likely one valuable tool for early management of the development of BCIs. These mechanisms should be flexible enough to grow with the technology as well as be hardened into binding law if necessary. These softer tools will need to be guided by standards and code of conducts that respect the privacy, agency, identity, and dignity of individuals and communities. Here we review three examples – across intergovernmental, civil society, and standard-setting bodies – illustrating the development of early mechanisms to manage BCIs. While these are important first steps, we argue stakeholders must now look to ways to actively, rather than passively, monitor and evaluate outcomes under these soft legal instruments.