BCI Devices and Their Capacity to Express Human Will Having Legal Value: A Model of Risk-Based Classification

One of the ultimate frontiers in biotechnology is the so-called Brain-computer-interface (BCI). BCI techs are already developed and used for therapeutic purposes (e.g., as assistive tools or diagnostic devices for health patients) or more recreational ones (e.g., for controlling devices by connecting them to the human brain). A BCI system detects the neural signal produced by brain activity due to a specific input, measures this response to the stimulus and records the output of the signal. This activity allows a decoding of patterns of brain signals, therefore ‘translatable’ in commands a computer can understand and even carry out in the external reality. That’s why BCI is now becoming more used (or experimented), considering the advantages that could derive from it for neurological research and health care, or in support of disabled people. Nevertheless, it also raises some questions from a legal point of view. This Paper focuses specifically on BCI-based devices used for assistive and augmented communication of users, and wonders what legal regime – if any – should be accorded to the personal will expressed through those tools. Once the risks have been identified, they are outlined the parameters that a BCI device must meet and the requirements it must have for the human will expressed through its use to be considered having legal value. The Paper proposes, in conclusion, a self-assessment strategy to operationalize BCI technologies applied or potentially applicable to the context of legal relations and juridic self-determination, implementing methods of risk evaluation and management. A risk-based classification model of BCI-communicative devices is also suggested.