Beyond the responsibility gap. Discussion note on responsibility and liability in the use of brain-computer interfaces

Actually, the responsibility-gap problem is not new at all. Responsibility issues arose and were discussed intensively in the early 19th century in connection with a typical accident of the period: steam engines exploding (Bayertz 1995, esp. pp 24–29). The problem was that there was nobody who had really caused these explosions. At first glance, neither the supplier, nor the workers, nor the owner of the factory could be blamed for having caused such accidents.

There is an opinion floating around that BCI signals cannot be said to be unconscious in the sense it is done here. Some researchers have suggested that patients trained in manipulating their slow cortical potentials (SCP) learn to be aware of their brain states (Kotchoubey et al. 2002). The researchers have shown that with the ability to control SCPs via a feedback device, the ability to assess the success of one’s own performance without having the feedback from the device increases as well. They inferred, by ruling out other explanations, that these patients perceive their SCPs directly. This would be to say that people can be directly conscious of signals a BCI might use. From my point of view, this explanation is not compelling. The ability to ‘produce’ something and to assess one's own performance in doing so does not automatically imply the conscious perception of the something produced. There is nothing hindering an interpretation of the experiments saying that the subjects have a conscious awareness of their performances rather than of the entities they manipulate. And this is more than claiming that they are aware of their alertness or concentration, as Kotchoubey et al. (2002, 109) suggested. Therefore, the signals used in BCIs, addressed from the descriptive third-person perspective, are legitimately taken to be and to stay unconscious.

Of course, the user focuses these target stimuli voluntarily and therefore ‘not voluntary’ does not mean involuntary in the sense of ‘against the will’.

Tamburrini (2009) proposed dogs or children as models. I take horse riding because of the unit rider and horse form and it is the performance of the unit that is of special interest here.

Communication for legally relevant statements for instance would need procedures to double-check the correctness of the patient’s responses and to limit the danger of mistyping as Tamburrini (2009, 142) is afraid of. One might think of the common practice of having to type a code or password twice when opening a new account on the internet.

This might hold for other assistive technologies as well. It is not claimed that BCI technology is absolutely unique here.

This could—at least for the nearer future—become a major problem. There is some evidence coming from eye-tracker-controlled wheelchairs: Up to now, companies have obviously refused to provide such devices because of their awareness of the remaining risks and potential high damage that could be caused by malfunctions. One might infer that BCI devices of that sort would face similar hesitations by factories and insurance companies as well. (Thanks to Michael Tangermann for providing me with this information.).