Updated: Sep 24, 2018
Note: This blog post is an adaptation of a law-review style article. As such, its is a detailed, formal piece of academic writing.
TL;DR: In a world where individuals' meaningful participation in society, particularly the economy, necessarily requires brain-computer interfaces that enhance cognitive function, the relationship between individuals and the companies commercially providing the technology may be considered a fiduciary relationship akin to the doctor-patient relationship, requiring such companies to put the interests of its customers above their own interests.
Enjoy . . .
The Technology Provider–Cyborg Relationship
Domo arigato, Mr. Roboto Mata o hima de,
Domo arigato, Mr. Roboto Himitsu wo shiri tai,
. . .
I've got a secret I've been hiding under my skin,
My heart is human, my blood is boiling, my brain IBM,
So, if you see me acting strangely, don't be surprised,
I'm just a man who needed someone and somewhere to hide,
To keep me alive, just keep me alive,
Somewhere to hide to keep me alive . . . .
The “singularity” is defined as the moment in history where the cognitive powers of artificial intelligence advance far beyond those of mere humans. As part of the singularity, human biology will merge with technology. More specifically, human brains will be able to be augmented with artificial intelligence. Some describe this as an evolutionary step where humans become “transhuman.” Put in more simple terms, this will be the rise of cyborgs.
As what it means to be “human” changes, especially in cognitive capacity, so too will evolve society and the economy. As the citizenry progresses towards consisting of primarily cyborgs, society and the economy will advance and become dependent on the capabilities of cyborgs. Following these evolutionary steps, courts will be confronted with many novel issues.
One primary question the courts will have to answer is what does it mean to protect the bodily integrity of cyborgs. Within this category, this article intends to begin the scholarly discussion on two particular issues: (1) how to define a hack of a cyborg’s “brain,” and (2) where to place responsibility for the protection of cyborgs from such attacks.
Ultimately, this article argues that the hack of a cyborg’s brain is a battery. Further, since the technology providers of cyborgs will be in the unique position of providing cybersecurity for the cyborgs’ brains and because cyborgs will be central to the proper function of society and the economy, this article suggests that courts should recognize the technology providers as owing a fiduciary duty to cyborgs.
To make this argument, section II of this article defines the singularity and offers evidence that the event of the singularity is not a question of if but a question of when. Thereafter, section III tells the tragedy of Adam. Due to the difficult nature of imagining the world after the singularity, Adam’s story serves as the factual basis for this article’s legal analysis. As section III describes Adam, a cyborg, as the victim of a cyberattack due to an economic decision made by the provider of his brain-augmenting implant, section IV asserts that the cyberattack against Adam should be categorized as a battery. Defining the harm against Adam as a battery offers Adam the ability to have standing for seeking a judicial remedy, as would not likely be the case under current data breach law.
Section V then asks the question of who should be held liable for the attack against Adam. While the hacker is a natural answer, this section argues that Adam should be able to hold his technology provider responsible for negligently failing to provide appropriate cybersecurity. This conclusion is the result of determining that the technology provider owed Adam a fiduciary duty to maintain his brain’s cybersecurity as a consequence of the technology provider being in the unique position to protect Adam, and, thus, society at large. Section VI concludes.
II. Moving Towards The Singularity
Definitionally, the singularity marks the point in time where artificial intelligence, already having surpassed human intelligence, becomes fully integrated with the human brain and perpetually connected to the internet. And the singularity is near. Google’s Director of Engineering, Ray Kurzweil, predicts that the “singularity” will occur by 2045. While some scholars believe that the singularity may be up to one-thousand years away, most believe that it will happen within the next one-hundred years. At present, companies with the sole purpose of integrating artificial intelligence into the human brain exist.
Indeed, several technologies that are indicative of the singularity are already being developed and perfected. One example is the area mind-internet integration. As its name implies, this technology expands the human mind to the limits of the internet by being able to translate computer signals directly into the brain. With the capabilities of artificial intelligence, individuals will be able to retrieve information from the internet instantly. Law Professor Joseph Carvalko describes this second ability as a human faculty to “receive input [directly from computers] for learning and experiencing—without using any of the five senses.” Presently, the developments in this technology include retinal and cochlear implant systems, and the ability for individuals to feel near-realistic sensation in artificial limbs.
Another indicator technology is deep brain stimulation (DBS). DBS is the process of implanting electrodes into various areas of an individual’s brain. Originally developed to treat symptoms of Parkinson’s disease, DBS is now used to treat depression. This technology lends further evidence that technology is reaching the point of being able to integrate electronics with the human brain, which can change the fundamental functioning of the human brain.
Certainly, the evidence indicates that society is moving towards the singularity. Once the singularity does arrive, there will be a paradigm shift. In fact, to many theorists, the singularity does not merely augment human capabilities but presents the next step in human evolution—the emergence of the “transhuman.” Put another way, for the transhuman, technology and flesh are indistinguishable. With the change of what it means to be “human,” many unique factual and legal issues will appear before the courts. One of these issues—the topic of this article—is what is the nature of the relationship between a cyborg and technology providers as it relates to cybersecurity? Enter Adam, a transhuman.
III. Adam’s Brain Was Hacked
After the singularity, courts are certain to be asked to analyze novel legal issues. A particularly foreseeable controversy is how is the law to handle the hacking of a cyborg’s brain. This harm is likely because a definitional aspect of the singularity is the merger of the human brain and technology, and experience has shown that all computer-based objects are subject to hacking. While it is ultimately the thesis of this article that a technology-provider has a fiduciary duty to protect cyborgs from hacking, the following hypothetical is offered to provide a factual basis for the subsequent legal analysis:
Adam is a twenty-five-year-old transhuman Seattleite in the year 2075. In fact, by 2075 most Americans are transhuman. Parents generally opt to install cerebral processors into their newborns, knowing that cognitive enhancements are all but necessary to meaningfully participate in modern society. This is because most of manual labor jobs in the economy have been replaced by robotics with artificial intelligence. The remaining jobs require enhanced brain power and the ability to interface directly with the Internet.
Adam works for Nanocomp, a bio-computer manufacture, and has just learned that Cognosoft, a competing company, is contemplating purchasing Nanocomp. As part of its due-diligence, Cognosoft is auditing all of Nanocomp’s employees—Cognosoft will keep only employees with particular installed hardware and software.
In this process, Cognosoft learns a lot about Adam. Of note, Cognosoft learns that Adam has a ten-year outdated cerebral processor from IB-X, which does not meet Cognosoft’s security requirements. Specifically, Adam’s cerebral processor contains a known cybersecurity flaw. Unfortunately for Adam, IB-X has long since stopped releasing patches for Adam’s cerebral processor that rectify issues discovered post-production of the product. IB-X made the business decision to focus all of its resources on newer versions of its hardware and operating systems. Because of this change in focus, IB-X has not patched the known security flaw in Adam’s cerebral processor.
As such, Adam’s only option is to pay $50,000 to have a new processor implanted into his brain, or else he will lose his job. Adam does not have that much money, therefore he loses his job.
Later, vindicating Cognosoft’s concerns, Adam learns that his cerebral processor was hacked when he finds his personal information for sale on the internet that could have only come from his processor. This also happened to many other people, and IB-X eventually confirms that its old processors have suffered a data breach via the known security flaw.
However, the identity of the hacker remains unknown.
Adam feels violated and feels that IB-X should be held responsible for his situation. On the face of the situation, it does look like Adam was harmed in that he lost his job and his personal information was exposed. Adam bring suit against IB-X for negligence. Thus, the court must determine the nature of Adam’s harm and whether IB-X can properly be held liable.
Under current law, Adam would not have a claim. The law of contracts would hold that Adam’s purchase of his outdated cerebral processor was an arms-length transaction ruled by caveat emptor. Similarly, the law of data breach would likely produce the conclusion that Adam has no standing to sue because he has no proof that his information was misused.
These results are unsatisfactory. Adam’s and society’s economic reliance on technology after the singularity lends itself to believing that the provider of his cerebral processor should have some responsibility for the continued security of its product. And the hack of Adam’s data also seems different in kind from traditional data hacks; the hack against Adam reached into his body.
 Styx, “Mr. Roboto,” Kilroy Was Here (1983).
 See, e.g., Drake Baer, 9 Crazy things that could happen after the singularity, when robots become smarter than humans, http://www.businessinsider.com/predictions-for-after-singularity-2015-11/#everything-is-going-to-change-1; Dom Galeon and Christianna Reedy, Kurzweil Claims That the Singularity Will Happen by 2014, https://futurism.com/kurzweil-claims-that-the-singularity-will-happen-by-2045/.
 Dom Galeon and Christianna Reedy, Kurzweil Claims That the Singularity Will Happen by 2014, https://futurism.com/kurzweil-claims-that-the-singularity-will-happen-by-2045/.
 Drake Baer, 9 Crazy things that could happen after the singularity, when robots become smarter than humans, http://www.businessinsider.com/predictions-for-after-singularity-2015-11/#everything-is-going-to-change-1.
 Joseph Carvalko, The Techno-Human Shell, A Jump in the Evolutionary Gap, 66 (2012).
 James Vincent, Prosthetic limb used to restore ‘near-natural’ sense of touch, claims DARPA, https://www.theverge.com/2015/9/14/9322133/prosthetic-limb-sense-of-touch-darpa.
 Eliza Strckland, Treating Depression With Deep Brain Stimulation Works—Most of the Time, https://spectrum.ieee.org/the-human-os/biomedical/devices/treating-depression-with-deep-brain-stimulation-worksmost-of-the-time.
 Id.; Kristen V. Brown, DARPA’s Brain Chip Implants Could Be the Next Big Mental Health Breakthrough—Or a Total Disaster, https://gizmodo.com/darpa-s-brain-chips-could-be-the-next-big-mental-health-1791549701.
 Zoltan Istvan, Singularity or Transhumanism: What Word Should We Use To Discuss The Future?, Slate.com (2014), available at http://www.slate.com/blogs/future_tense/2014/08/28/singularity_transhumanism_humanity_what_word_should_we_use_to_discuss_the.html.
 See Brian E. Finch, Anything And Everything Can Be Hacked, Huffington.com (2013), available at https://www.huffingtonpost.com/brian-e-finch/caveat-cyber-emptor_b_3748602.html.
 The vision of Adam presented in this story is the creation of Joseph Carvalko in his book “The Techno-Human Shell.” Carvalko, 143-44 (2012). However, I have greatly expanded the nature of Carvalko’s society to present a relevant hypothetical to the thesis of this paper.
 Id. at 144.