By Tom Reynolds, Export Solutions

Eighteen years before he wrote Jurassic Park, the novelist Michael Crichton penned a different story titled The Terminal Man.  It’s about a computer scientist who undergoes surgery to cure his seizures – having 40 different electrodes embedded in the amygdala part of his brain and connected to a small computer in his shoulder.  Spoiler alert!  Our scientist goes on a killing spree and things don’t turn out so well for him in the end.

Fast-forward 49 years, and science is quickly catching up with science fiction.  Today, the government is planning to control exports of brain-computer interface (BCI) technology in the interest of national security.  Should they?  How could it be done?  And where do you draw the line between a human being and controlled technology?

Wait, what is BCI?

Simply put, brain-computer interface (BCI) technology enables humans to directly interface with an external device.  What kind of device?  Well, computers, machinery and even robotics are just a few examples.  Some researchers believe BCI can cure a range of medical issues, from controlling prosthetic limbs to curing blindness.  Others see military applications on the horizon.  For example, in 2016, a mechanical engineer from Arizona State University piloted a small fleet of drones using only his mind.  Later, a paralyzed woman flew an F35 flight simulator with her brain.  Could BCI enable direct brain-to-brain communication between soldiers on the battlefield?  Could it power exoskeletons that make warriors 25 times stronger (or faster) than average humans?  If you think this is all Hollywood make-believe … think again.

There are three basic types of BCIs – (i) invasive; (ii) partially-invasive; and (iii) non-invasive.  Invasive BCIs are, of course, the riskiest.  They involve surgically placing electrodes or sensors into the “gray matter” of your brain.  If that level of commitment isn’t your cup of tea, then consider partially-invasive BCIs.  These are placed under your skull but rest outside of your brain.  Some research has proven these applications are highly effective, in part, because they have a lower risk of forming scar tissue.  If both of those choices give you the creeps, then non-invasive applications are the way to go.  These sensors are placed on or near your head, but not beneath your skin.  Non-invasive BCIs are accomplished with things like headbands, skull caps or even Doc Brown’s brain wave analyzer.

Regardless of how the connection is made, the goal of all BCI technology is essentially the same:  enabling humans to directly control machines without the constraints of a physical body.  The technology is so new that many researchers believe the possibilities are endless unknown.  In the future, BCI could help paralyzed people type, talk and move.   Its applications could be as noble as curing ALS, or as mundane as eliminating your computer keyboard and mouse.  What about entertainment?  Just imagine a future where all the world’s gamers connect to the “metaverse” simply by willing it to occur.  Or where you play your favorite TV show just by thinking about it.

We aren’t there yet, but the future is approaching fast.  Earlier this year, Elon Musk’s Neuralink released a video showing a monkey named Pager playing the video game Pong using nothing more than a device implanted in its brain.  And just a few months ago, the FDA approved human trials for one of Neuralink’s competitors.

Is BCI an “emerging technology”?

The short answer is … probably.  But first, a little history.  In 2018, the U.S. government passed new laws that would seek to control “emerging technologies.”  The Export Control Reform Act (ECRA) tasked the Commerce Department, specifically the Bureau of Industry and Security (BIS), with developing the appropriate processes and controls for these types of technologies, which are “essential to the national security of the United States.”  But what, exactly, is an “emerging technology”?  And what isn’t?  Neither Congress nor BIS have published an official “definitive” list of these technologies, however, BIS has sought public comment on 14 general areas that could be considered for these controls.  Those categories include things like artificial intelligence (AI), quantum computing, robotics and … you guessed it, BCI.  As a side note, it’s important to remember that, just because your technology may not be included in the 14 different categories, this does not mean it isn’t considered an “emerging technology.”  BIS has broad authority to identify any technology for controls to protect U.S. national security.

Back to BCI.  Public comment was sought about whether this should be considered an “emerging technology” under the law.  Now, BIS has published an advanced notice of proposed rulemaking about BCI technology.  Some of the questions being posed to industry and researchers include:

  • How does the U.S. development of BCI compare to other countries? Are we at the forefront of this technology?
  • What impact would export controls have on the development of this technology?
  • How would the regulatory impact change, for example, if BIS imposed controls on only software? Or hardware?  Or both?
  • Are there BCI technologies that are more vulnerable to foreign threats (such as those being used for military systems)?

If you want to be involved in shaping opinion on these questions, comments are due by December 10th.  There are more steps before BIS officially declares BCI an “emerging technology.”  If history holds true, the agency will next publish an “interim final rule” to describe more specifically the controls being planned and to give the public a chance to comment on those rules.  Then, a final rule would be published in the Federal Register before any new export controls become law.

How could the government control BCI technology?

Assuming BIS does implement some controls, what would they look like?  How would they work?  The most common form of control is through an export license approval process.  This requires exporters to apply for, and obtain, a license from the government prior to releasing the technology to a foreign person.  The government could also list certain entities and persons on the restricted parties lists.  They could adopt a “presumption of denial” policy for BCI.  Exactly how this all plays out remains to be seen.  For example, the EAR defines “technology” as:

Information necessary for the “development,” “production,” “use,” operation, installation, maintenance, repair, overhaul, or refurbishing (or other terms specified in ECCNs on the CCL that control “technology”) of an item.

At first glance, this definition seems to limit the scope of BCI controls only to the “know-how” or information.  Under this narrow definition, for example, your company’s team of BCI engineers could be prohibited from discussing their research and findings with a team of foreign BCI engineers, whether that discussion occurs in the U.S. or a foreign country.

Practically speaking, the government can (and does) control a wide range of items that go beyond this narrow definition.  In the EAR, you’ll find controls on software, hardware, materials, and much more.  This can create some challenging process questions with respect to BCI.  Such as:

  • What does BCI technology actually encompass? Is it just the hardware?  (The sensors and electrodes and computers?)  The materials they’re made from?  The software that runs these machines?  Is it the technical expertise to make them work?  Or all the above?
  • Assuming “all the above” … are they all controlled the same way? Or, for example, would the software be controlled at a lower level, while the hardware has more stringent measures in place to prevent a foreign country from accessing it?
  • Speaking of hardware, keep in mind that we may be talking about microscopic components. Some BCI applications use “neural dust” – devices that are less than a millimeter in size … or even the size of a grain of sand.  How do you control those?  Especially when they’re buried inside a person’s brain?

You might be the first person in line to have a BCI device implanted in your head, but you might think twice if it means you need to get an export license every time you leave the country.

These are just some of tricky questions that need to be ironed out as the United States approaches this new technology.  The government wants to protect U.S. national security while, at the same time, keeping us at the cutting edge of scientific advancement.  Those two goals are not easy to reach, and not always compatible.  Inevitably, one usually gets more deference at the expense of the other.  Which means some companies involved in BCI technology will have regulatory burdens placed on them that they otherwise may wish didn’t exist.

In Jurassic Park (when he isn’t being chased by a T-Rex), Dr. Ian Malcolm famously quips: “Your scientists were so preoccupied with whether or not they could, they didn’t stop to think if they should.”  For BCI technology, scientists have already moved beyond those ethical dilemmas.  Today, the question before government and industry is more like: “Now that we have it, how do we control it?”

Let’s hope we do a better job than the people who built a theme park full of dinosaurs.

Tom Reynolds is the President of Export Solutions, a consultancy firm which specializes in helping companies with import/export compliance.