Writings by Dr. John C. Rao

The Legal Regulation of Transhumanist Enhancements

(From Transhumanismo o posthumanidad?: La politica y el derecho despues del humanismo, Miguel Ayuso, Ed. (Marciel Pons, Editiones Juridicas y Sociales, 2019)

When first asked to deliver this paper my initial reaction was to run and hide. I am not a lawyer or a legal scholar but an historian of ideas. Although I have not completely overcome my original sense of inadequacy, a number of factors convinced me to stand and fight. Friends with legal expertise were generous with their practical assistance, study of the issue made it clear that the question at hand fits all too clearly into those broad developments in the history of philosophy, theology, and the confrontation of Catholic Christianity and naturalism with which I am familiar, and---perhaps most importantly---a chance to escape the power center of the transhumanist movement for a return visit to one of my favorite non Anglo-American countries was absolutely irresistible.

My approach today will be threefold. I will begin by discussing the way in which legal discussion in the United States regarding existing problems caused by developments that the transhumanists so enthusiastically welcome is already suggesting broad guidelines for dealing with our advance from what may be called the “juvenile” to the “adult” age of cyborg change. Secondly, I wish to address the transhumanist attack upon legal impediments to pursuing their project. Finally, I would like to end my presentation by making a few comments regarding the connection of the transhumanist argument to the age-old effort to destroy all attempts to place human action within any theological and philosophical framework whatsoever; a connection that makes impossible any meaningful discussion of legal regulations in the pseudo-supernatural, anti-rational, and very magical world that the transhumanist movement celebrates as its ultimate post-humanist goal.

An extremely useful guide to the very practical and already existing problems making consideration of “cyborg law” in the United States a pressing concern is a Brookings Institution report written shortly after the unanimous American Supreme Court decision requiring a warrant for searching cell phone data in the case of Riley vs. California of June, 2014. It was in this judgment that Chief Justice John Roberts stated: “’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’”;¹ i.e., that people are already cyborgs, at least in a metaphorical sense.

Justice Roberts’ comment did not emerge out of nowhere. Scientists working for the American space program and in the realm of national security had been publicly predicting this development since at least 1960. Legal scholars by the beginning of the new century were mulling over the implications of robotic prostheses, bionic arms, and pacemakers that could literally be considered a part of the people they served---pacemakers in a way that also involved production of data leaving permanent traces behind them, along with a connection to the Internet and, through the web, to the entire globe. Perhaps more importantly still, they were increasingly considering the legal impact of the psychological changes in individual personality, themselves caused by the narcotic reliance of individuals who were “wearing” their computers at all times. Such men and women were using these devices to do things that people just a short time earlier would have considered to be superhuman in character---thereby rendering the question of whether or not they were actually implanted in the body or not a rather pointless one.

Robotic prostheses, bionic arms, pacemakers, and wearable computers of all kinds could all be seen to point to previously unexplored questions. These were now brought to the fore by the fact that American law recognized “human rights”, but not those of machines that were becoming literally or figuratively, whether through physical attachment or personal addiction in a data-driven society, an integral part of people’s bodies and psyches. “Our law, as the Brookings Institute article indicates, “sees you and your cell phone as two separate entities, but also the woman with a pacemaker and the veteran with a robotic prosthesis, when they seem more part of the person than a cell phone”.² As the “wearable computer” and its offshoots become ever more rapidly an internal rather an external matter, the failure, legally, to address the “rights” and limitation of “rights” of the machines that are deemed both physically essential by the people using them ---as well as psychologically integral to their “human nature”---then might become catastrophic. The central problems are those affecting property rights and liability for damages, individual privacy, and the State’s responsibility for defending the common good.

Important existing liability and property questions justifying giving machines “rights” because of their firm tie to those of the humans whose lives are bound to them can be seen with reference to the 2009 case of a Vietnam veteran whose whole well-being was bound together with a “mobility assistance device”. The destruction of this machine led to his total incapacitation for a year. Nevertheless, the liability on the part of the airline clearly responsible for wrecking the MAD during flight was limited only to the rather insignificant cost of the device itself---a machine that nevertheless took a long time to replace. The law considered the damage as being done to the right-less machine; not the man “united” with it. Moreover, the fact that American property law could allow for the actual termination of the use of an object that was now an “essential part” of a human person pointed to further ramifications as spelled out by Professor Gowri Ramachandran of Southwestern Law School:³

It is completely unremarkable for property rights to exist in electronic gadgets. But we might be concerned if owners of patents on products such as pacemakers and robotic arms were permitted to enforce ‘end user license agreements’ (EULAs) against patients. These EULAs could in effect restrict what patients can do with products that have become merged with their own bodies. And we should rightly, I argue, be similarly concerned with the effects of property rights in wheelchairs, cochlear implants, tools used in labor, and other such devices on the bodies of those who need or desire to use them.

Liability and property questions smoothly merge into individual privacy issues. Pacemaker and defibrillator users have discovered that they possess no right even to see the wireless information regularly transmitted to their physicians’ offices by the devices connected with them. The lack of control of personal data this entails is further exacerbated by recognition of the ease with such data is exposed to hacking. So great is the danger of hackers breaking into the information transmitted and connecting with the Internet to gain still further private knowledge regarding the people at risk that the wireless capacity of Vice President Dick Cheney’s pacemaker was disabled by his physician when he assumed office in 2001.

Unfortunately, disabling data transmission from one’s own implanted devices does not protect an individual from intrusions into his property and privacy rights. Learning one bit of information about a person from “essential” external machines means a lot more than one might think, even in our juvenile cyborg world.⁴ When we learn the GPS coordinates of a phone, there is a person attached to that phone. When we check how our Fitbit data compares to that of our friends, we are not comparing our wristbands to other wristbands, but our physical performance to that of other people. When we examine a computer’s search history, we are looking at the trajectory of a person’s thought.

Google Glass, which Woodrow Hartzog, an affiliate scholar at the Center for Internet and Society at Stanford Law School, called “possibly the most significant technological threat to ‘privacy in public’ I’ve seen”, is a perfect example.⁵ Aside from potentially being able to shield its wearer from seeing things he does not want to notice---enabling him to live in a virtual world of his own--it allows him to take pictures with a wink and transmit what he captures to the Internet. A movement called “Stop the Cyborgs” ⁶ maintains a website on which it details the problems of unwanted surveillance from Google Glass, Eye Trap, and similar “wearable” computers; problems ranging from collecting data on an individual’s physiological responses to environmental factors, his geographical location and his personal interests, to infringement of copyright law---as, for example, by illegally downloading a new film watched in a cinema.

Protecting the rights of individuals from this kind of intrusion is one of the tasks of a properly constituted State. A legally responsible State would not only have to prevent unwanted interference in private person’s lives, but also in its own affairs, when these require some degree of secrecy for the sake of the common good---a concern for which certain libertarian-minded “juvenile cyborgs” regard with contempt. Moreover, it would have to learn to make a distinction between what was a wearable device intruding on private or public affairs and one that was being used for totally understandable personal purposes. Perhaps one could sympathize with the staff of the MacDonald’s in the first cyborg hate crime suit---a 2012 incident, wherein workers attacked an Eye Trap wearer they suspected of collecting information about them, but whose innocence was demonstrated by the evidence his device collected. On the other hand, it seems likely that we might extend a similar sympathy to the man wearing an “eyeborg” that enabled him to “hear” colors that he could not see, in a case where the police assaulted him under the mistaken assumption that he was using an illegal surveillance camera.⁷

Still, it is the temptation of the State itself to use the information that can be gained from enhancement devices to intrude upon the individual that is more and more frightening to most people. This is most commonly justified by its application of the modern American “third party doctrine” interpretation of the Fourth Amendment of the United States Constitution: the idea that transactional data voluntarily given to third parties is not protected by the guarantee against unreasonable search and seizure. It is this doctrine that underlies the government’s seizure of bank accounts, credit card bills, telephone calls, and Internet searches, providing access to information extending so deep into private lives that the “Stop the Cyborgs” movement considers it among its most serious concerns.

There is simply no way that people can live any longer without using the tools that give out the information in question. It is as personal to them as entry into their private homes. If the electronic information pumped outside of ourselves does not have the legal rights that we as persons have, then we see ourselves as being stripped of our personhood---now enhanced--as well. “When dealing with a world ever more filled with juvenile cyborgs, to conduct surveillance against a machine is to conduct surveillance against a person”.⁸

A separate question, but one of equal importance in terms of personal privacy, is the extent to which the State can demand bodily enhancement of its own personnel as a condition of their continued employment. The Brooking Institute Study gives an example from Mexico to illustrate this problem. This involved the installation of chips in one hundred sixty prosecutors to grant them access to restricted areas for the seemingly legitimate purpose of gaining information about drug abuse. ⁹

All these liability, property, privacy, and common good problems will become more complicated still when further, quite foreseeable technological enhancements are made possible. What will happen, for example, when and if all wearable computers are implanted, so that the MacDonald’s workers would not be able to see “what” might be investigating their work habits through the “hidden” cyborg in front of them. Would all staff have to implant their own counter-devices to fend off their possible assailant, lest one sole enhanced individual have an unfair advantage over the rest of them? And what would further developments in human interaction through implanted cellphones---which some claim already to have happened---portend?¹⁰

Instead of carrying a device, dialing it, and speaking into it, the individual would simply have the ability to talk---as though her interlocutor were present---with any individual in the world. He would merely identify mentally to whom he was talking, and the telecommunications chip in his head would connect with the telecommunications chip in the recipient’s head. He would not even be conscious of using technology. That means that they would produce metadata about which systems they had connected to, and this signifies that what they sent would be subject to interception. That, in turn, would mean that a list of everyone you had talked to was readily available, at least in some technological sense.

Much more problematic would be the legal regulation of any future enhancements planned and paid for by parents. Would these machine aspects of the offspring be the property of the mother and father of the child? Would they then be able to make adjustments in the machine parts’ functioning if not satisfied with the cyborg child-product, or if some new application for his still further enhancement became available? Would they be able entirely to terminate those machine parts of their human offspring that belong to them? Or might it be the case that the continuing human rights of the child would allow him to sue his parents for their choice of the kind of cyborg he had become, and demand taking charge of the machinery in which his mother and father had invested?

Transhumanists see the capability of implanting a computer into one person’s head that interfaces directly with the brain of other human beings so as to incorporate their insights directly into his own as being just around the corner scientifically. This would appear to be an extreme assault on human privacy. After all, what one individual might think of as a magnificent cooperative aid to the enhancement of his personal thinking processes could be considered highway robbery by a man who does not want to have his brain plucked. Even the transhumanists themselves, in depicting the many artificial experiential worlds that we will be able to live in, or the uploading of brains into clones of one original human person, indicate the legal problems such developments would entail:¹¹

Tricky cases arise, however, if we imagine that several similar copies are made of your uploaded mind. Which one of them is you? Are they all you, or are none of them you? Who owns your property? Who is married to your spouse? Philosophical, legal, and ethical challenges abound. Maybe these will be come hotly debated political issues later in this century.

Transhumanist anticipation of our emergence from the juvenile to the adult cyborg world brings us to the second part of my talk today: the argument for removal of any legal obstacles to the research necessary to achieve the enhancements in question, and the powerful resonance this has even among believing Christians, especially in the Anglo-American world. Transhumanists proudly concede their debt in understanding what needs to be hoped for and done to achieve their ultimately post-humanist goal to many Renaissance and Enlightenment figures, from Pico della Mirandola with his Oration on the Dignity of Man in 1486 to the Marquis de Condorcet and his exaltation of Progress. Ironically, their literature does not mention Diderot, who saw how Enlightenment naturalism worked logically to break down borders of animal, vegetable, and mineral in a way that brings to mind transhumanist fascination with the possibilities of manipulating atoms through what is called nanotechnology.

Still, the movement owes special thanks to Francis Bacon in his Novum Organum (1620), for advocating “the project of ‘effecting all things possible’, by which he meant the achievement of mastery over nature in order to improve the condition of human beings”.¹² Bacon, probably the greatest stimulus to that “Universal Knowledge Movement” which ultimately inspired the work of the London Royal Society for Improving Natural Knowledge and its many imitators throughout the western world, outlined the pressing need both to break down “idols” preventing effective research, as well as the co-operative labor inevitably requiring serious sources of funding to fulfill the great promise of his scientific method. The idols concerned included Christian and Socratic inspired blocks on human labor backed by governmental force and social stigma, while the potential sources of funding perhaps might include the very State whose change of heart with respect to open research could lead it positively to promote what it was at the moment prohibiting---and, perhaps, to force society in general to “think correctly” as well.

All this remains central to the transhumanist argument today. “Idols” promoting legal limitations of research leading to the adult cyborg stage of history must be destroyed. The call of Max More, founder of the Extropy Institute, and Nicholas Boström, the head of Humanity+ of Ox for “no more gods, no more faith, no more timid holding back”, and the breaking down of “reckless and dangerous barriers to urgently needed action in the biomedical sphere” are an exact translation of Bacon’s position in our own time, with the same major consequences legally for any society endorsing such guidelines.¹³ What, exactly this all will mean, especially given modern western society’s political swings from libertarianism to governmental coercion and social engineering, deeply troubles men such as M.J. McNamee and S.D. Edwards, writing in the Journal for Medical Ethics.¹⁴

Do they want absolute and unsanctioned by the federal government or international authorities freedom of scientific pursuit, such as chimerical engineering of humans, neural emulation, cyberware, senescence suppressants, cognitive enhancements or morphological modifications, with no legislation prohibiting or inhibiting privately funded research? Or do they want governmental funding for anti- senescence treatment, suspended aninmation, cyberware implants, and enhancements? Do they contemplate the need for enforcing medical treaments, such as vaccination, and establishing a ‘morpho-law’ where proper authorities would supervise and monitor human and non-human modifications and protect the ‘modified’ from the ‘unstable’ and ‘harmful’ mods, or do they intend to follow the ‘my body, my right, my choice’ initiative with all the pros and cons such freedom entails?

Transhumanist groups admit that any number of potentially apocalyptic dangers, ranging from terrorist hacking of research data to the release of insufficiently understood viruses into the environment, would require some form of basically friendly legal regulation of the conditions under which the move to an adult cyborg society would take place. They even rather condescendingly feel that what they deem to be irrational fears about superior, post-human creatures oppressing those stubbornly attached to their outdated mode of existence---people whom some transhumanists nickname “the Humish”, and speculate might want to live a separate existence like the Protestant Amish in the United States---must be addressed. Nevertheless, confirming their historical connection with the English, Moderate Enlightenment, socio-political environment in which the project of Francis Bacon took root, they insist that these regulations and fears will be more than adequately provided for by a commitment to freedom, education, and dignity of the individual, a spirit of tolerance and human solidarity, and the democratic constitutional institutions of the countries in which they live: all those blessings that Anglo-American man presumes to have begun with the Renaissance and to have grown inexorably and irrevocably from that time forward.¹⁵

Trans-humanism can be viewed as an extension of humanism, from which it is partially derived. Humanists believe that humans matter, that individuals matter. We might not be perfect, but we can make things better by promoting rational thing, freedom, tolerance, democracy, and concern for our fellow human beings. Besides, they say, the problems of technology will easily be resolved in the future by more technology. ¹⁶ In fact, as Kamil Muzyka, a lawyer specializing in industrial property law and technology management, with a focus on issues of artificial intelligence, asteroid mining and international space law, explains, the legal system that helps to bring these blessings into practical reality will itself be made immensely more efficient by the enhancements that are to come. ¹⁷

So what will the legal system look like in the future? Will the Computer Assisted Everything age dispense with the need for a real life attorney? As the computer technology introduces new means of controlling our environment, it seems likely that future legal services would be provided by our AI {artificial intelligence} assistants, whose skills would certainly exceed the capabilities of any traditional law office. Equipped with the Internet of Things technology proficient at gathering, processing, and analyzing legally significant data from our environment - though relays, sensors, displays, etc. - our AI assistants would instantaneously provide us with sound legal advice in any area of law.

The fact that Muzyka defines what he calls the “universal principles” of “the natural law” as something “reflecting the zeitgeist or the spirit of time”¹⁸ brings us to the third, most broad, and, as far as I am concerned, most horrifying part of our discussion. For the “modern” lineage to which the trans-humanists relate themselves is an already ancient one, tying Bacon, along with the Anglo-American understanding of tolerance, constitutionalism, and democracy, together with the perennial message of the pre-Christian magical and Sophist spirit. This lineage was transmitted to Bacon and the Anglo-American world through an unholy alliance of the medieval anti-rationalism of William of Ockham and Marsilius of Padua, Renaissance alchemy, and the Protestant concept of the total depravity of man and nature after Original Sin. In trans-humanist hands, it ultimately ends in that pseudo-supernatural, pseudo-mystical, and irrationally enchanted approach to the universe that René Descartes---in a sense, the “founding father” of mechanism, found most repugnant in the magical spirit.

Unfortunately, what this means is that if the transhumanist project, with its post-humanist goal, were actually capable of succeeding, the legal regulation of the enhancements it expects to multiply at ever more rapid speed would be dictated by the “natural laws” of a totally irrational, willful, and---at least from a Christian standpoint---diabolical zeitgeist. Their precise formulation would be the work of either the power or money driven forces that have regularly benefited from the modern alliance with the ancient magical arts under the argument of a liberation and progress beyond normal human comprehension skillfully promoted with traditional Sophist rhetorical tricks.

All of this is already there in the work of the author of the Novum Organum. Bacon, with his dictum that knowledge is meant for power, clearly had no problem with the magical desire to manipulate nature for this precise purpose, and he tells us openly that his only criticism of the work of the alchemists is a procedural one: their lack of a sufficiently disciplined scientific method. Scientific-minded advisors had to replace those court alchemists serving every European ruler at the beginning of the seventeenth century to the horror of Descartes. “Whatever works” and can “gain success” is Bacon’s fundamental guide to action, with, as we have seen, both Faith and Socratic Reason clearly among the chief “idols” making men “timid”---to use Boström’s term--- and blocking their willingness to manipulate the world for their perceived material benefit. Moreover, there is absolutely nothing that distinguishes this approach from that of the great sophist opponents, first of Plato and then of Christianity. Such men detested speculative philosophical and theological arguments as a pointless waste of time in a world where only what works and gains success had meaning. They answered them with rhetorical sloganeering and mockery, as well as with an appeal to the use of that brute governmental force that they derided their enemies, concerned with moral questions of right and wrong as they were, for being too thickheaded to recognize as the only guiding element for a State making “law”.

Still, the logical legal consequences of this manipulative and sophistic materialist positivism were disguised by the Moderate Enlightenment environment in which it took root, and which proved to be so crucial for its successful transmission to our own time. For Bacon’s hopeful vision of co-operative, scientific Progress was most effectively spread on the intellectual and scientific level by the so-called “physico-theologians” connected with the Royal Society, themselves very much influenced by Protestant Pietism. Pietist “physico-theologians” wanted to avoid religious dogmatic discussion entirely. They saw in their experimental uncovering of the “hidden qualities” of nature and the “enhanced” natural laws to be discovered therefrom both a proof of the architectural plan of the Creator God as well as a pathway to mechanical developments whose obvious charitable usefulness was the true way of worshipping the loving, Christian Deity. Charitable-minded believers in general found this argument hard to resist, especially when convinced by Pietists that the unchanging Christian moral law was imbedded in man’s consciousness as natural “common sense”, and protected by the Anglo-American constitutional commitment to transmission of such natural, “common sense” into positive law. Although the specifically Christian character of this argument may have faded away in the hands of the transhumanists, the appeal to an ever increasing knowledge of how to deal with human suffering is still one of their central arguments against limiting or prohibiting the kind of research and experiment that they favor. Hence, the continued difficulty of many believers to find adequate arguments to justify any contrary position, and the weakening of their response to the broader and subtle dangers of the whole scientific and political vision in question.

Unfortunately, Bacon’s approach guaranteed an increasingly mechanist understanding of nature that rapidly ate away at the faith of the physico-theologians. Perhaps even more dangerously, the radical, materialist individualism of John Locke, who played such a central part in creating Anglo-American constitutionalism, logically encouraged ever more comprehensive assaults on the supposedly untouchable and unchangeable Christian “common sense” moral code translated by conventional agreement into authoritative positive law. Nature-based Faith and conventional common sense had to give way, as guidelines to the law. They were discarded in favor of “what works” and “gains success”. This, in the Anglo-American experience, has historically, in practice, made whatever aids in gaining the power to make money and satisfy personal material desires the sole driving force in an ever more ethically and morally barren legal code. Such decay is held back only by whatever crumbling remains of commitment to early custom is still accepted by the conventional “wisdom” of the mob and the sophists who actually teach that mob what it supposedly “wills”.

Everything that transhumanism might mean that is still considered to be evil by conventional wisdom---such as Nazi Racism and eugenics---and everything that is still conventionally agreed to be good---such as being “humane”---is still treated by transhumanists as obvious.¹⁹ Nevertheless, while acting as though none of this conventional wisdom can change, they continue to strip away all grounds for being able to know and define what is morally good and morally evil, leaving the law with no rational guideline other than what works, what is successful, and what men seeking power, money, or personal material satisfaction of other kinds will the law to be.

They understand nature not to be a structured order of things, but whatever exists, the effects of sin---what Christians would call “fallen nature”--- included. ²⁰ Their understanding of nanotechnology, which “by making it possible to rearrange atoms effectively, will enable us to transform coal into diamonds, sand into supercomputers, and to remove pollution from the air and tumors from healthy tissue” ²¹ makes their brotherhood with the alchemists crystal clear, as does their endless speculation regarding our future ability to live in full virtual realities with different physical laws, to upload versions of ourselves needing no food or housing, and to develop lizard tongues and animal skins.²²

Moreover, they crown this reduction of nature to the irrational, magical, Triumph of the Will with speculations about the future of mankind that create a pseudo-supernatural realm whose gods’ desires cannot even be known, much less translated into enduring legal practices. This is because their love of the machine aspects of the adult cyborg contains within it a hatred of whatever it is that is still human. Their liberation of the human through the aid of the machine becomes, as a National Science Foundation “Ethics of Human Enhancement” paper in 2009 already argued one assuring that “assimilating tools into our persons creates an intimate or enhanced connection with our tools that evolves our notion of personal identity”.²³ And this entails the liberation of the machine from the human.

Transhumanist speculation regarding liberated machines translates not just into fanciful discussions of whether future robots will legally have to have their rights to decent working conditions and a living wage secured, but also into an outright denunciation of the ‘half-baked’ project of human nature, as well as of “speciesism”, defined as “human racism”: the “view that moral status is strongly tied to membership in a particular biological species, in our case, homo sapiens”. ²⁴ When what is referred to as “The Singularity” occurs, and super intelligence creates post humans, creatures will appear about whom we can know nothing.²⁵

It is difficult for us to imagine what it would be like to be a posthumanperson. Posthumans may have experiences and concerns that we cannot fathom, that cannot fit into the three-pound lumps of neural tissue that we use for thinking. The arrival of super intelligence will clearly deal a heavy blow to anthropocentric worldviews. Much more important than its philosophical implications, however, would be its practical effects. Creating superintelligences may be the last invention that humans will ever need to make, since superintelligences could themselves take care of further scientific and technological development. They would do so more effectively than humans. Biological humanity would no longer be the smartest life form on the block.

McNamee and Edwards, very troubled by the entire lack of any structure or telos in nature as presented in the transhumanist vision, draw the obvious consequences for law. What could possibly be the moral objection to being arbitrary in one’s judgments when these are constantly evolving and cannot even be understood by us? Why would the post-human care what he did with the human?²⁶ As noted earlier a transhumanist may be thought to be beyond humanity and as neither enjoying its rights nor its obligations. Why would a transhuman be moved by appeals to human solidarity? Once the prospect of posthumanism emerges, the whole of morality is thus threatened because the existence of human nature itself is under threat.”

I am not sufficiently trained theologically to know whether the Catholic Faith teaches that the manipulation of nature in this anti-human, post-humanist manner is really possible. But even if it were in no way feasible, the ideological fervor of the “no more timidity!” transhumanists is one that demands that contemporary human beings be forced psychologically to break down all obstacles to wanting their diabolical desires to be realized. This, translated into coercive educational and daily, social changes backed by what amounts to a lawless “law” will create the kind of virtual post-humans that they envisage even without the actual construction of an adult cyborg society. And that, quite clearly, means the Triumph of the Shapeless Will over the machine: the exact opposite of what the “founder of mechanism”, the anti-magical Descartes, intended to achieve. ²⁷

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