"Neurobionic Revenge Porn and the Criminal Law: Brain-Computer Interfaces and Intimate Image Abuse' by Allan McCay in
Nicole Vincent, Thomas Nadelhoffer and Allan McCay (eds),
Neurointerventions and the Law: Regulating Human Mental Capacity (Oxford University Press, Forthcoming)
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Brain computer interfaces make possible a form of neurobionic agency in which people interact with the internet by mental action, without the need for a bodily movement. In this paper I consider the possibility of someone uploading intimate images of another person, without their consent, onto social media by way of brain-computer interface. I do this in order to highlight the novel, and perhaps problematic nature, of the options for response to such offending (given current doctrine) that are available to the criminal law. I use the example of revenge porn as a case study, in order to very tentatively consider the criminal law’s response to neurobionic offending more generally.
Methodologically, my paper is somewhat different to much of the work that has been done on criminal responsibility in the context of brain computer-interfaces, insofar as the paper significantly engages with legislation, and to some extent case law, with reference to a hypothetical scenario. Previous work has generally considered the issues in more abstract terms and I argue there are some advantages to my more applied approach.
Whilst the law has criminalized bodily actions, omissions and certain kinds of status, neurobionic agency falls into none of these traditional categories, and some issues flow from this failure. I will argue that neurobionic revenge porn would present a challenge to the criminal law relating to the determination of the conduct which constitutes the actus reus. Thus, I argue that if the courts are required to respond to this kind of offending; it will raise questions about a concept that is currently central to the criminal law.
