Who, If Not the FDA, Should Regulate Implantable Brain-Computer Interface Devices?

Abstract

Implantable brain-computer interface (BCI) and other devices with potential for both therapeutic purposes and human enhancement are being rapidly developed. The distinction between therapeutic and enhancement uses of these devices is not well defined. While the US Food and Drug Administration (FDA) rightly determines what is safe and effective, this article argues that the FDA should not make subjective, value-laden assessments about risks and benefits when it comes to approval of BCIs for therapy and enhancement. This article also argues that determining BCIs' benefits to society requires deliberations on values that the FDA is neither accustomed to making nor qualified to make. Given the inadequacy of the FDA's safe-and-effective standard to judge devices spanning the spectrum of therapy to enhancement, this article argues that BCI regulation should not be overseen by the FDA.