Darshan
Hey everyone, welcome to another episode of DarshanTalks. I'm your host Darshan Kulkarni. It's my mission to help help you trust the products you depend on. As you may know, I'm an attorney. I'm a pharmacist, I advise companies with FDA regulated products. So if you think about drugs, wonder about devices consider cannabis or obsess over pharmacy. This is the podcast for you. Both my guests and I are attorney so we do have to say this, this is not legal advice. It's not intended to be clinical advice either. I do these podcasts because they're a lot of fun. I find myself learning something new each time. But it would be nice to know if someone's listening. So if you'd like what you hear, please like, leave a comment, please subscribe. And I know my guests would appreciate it. And I would appreciate it as well. If you'd like what you hear, please share. If you want to find me, you can always find me on Twitter at DarshanTalks or just go to our website at DarshanTalks calm. Our guest today is the deputy Deputy Director at the Sydney Institute of criminology, an adjunct lecturer, University of Sydney law school. And that just sounds impressive enough enough to me, but add on to that he is what most would call the preeminent thought per person. Thought Leader. That's the word I was looking for preeminent thought leader around your rights. And I'm really excited to ask him questions about that as well. So if you are in clinical research, if you are interested in your ethics and your rights, you probably care about today's discussion. Ladies and gentlemen, our guests for today. Dr. Alan McKay, how are you?
Allan
Good thanks. So thanks for the very generous introduction.
Darshan
Thank you Well, it's all true it's all true especially on the internet where I believe Abraham Lincoln said so but but but having said that, I want to hear more out and like the last time we spoke we did a lot of kind of deep dive into your ethics and quite honestly I want to do a refresher I want to get into this a little bit more. But before we get into that what I want to hear a little bit more about is the fact that I understand you are not you are an adjunct professor at the University of Sydney so how you had a pretty interesting life already How did you land up with being a lecture and how does that tie into the work you do at the Institute of criminology
Allan
so I have practice as a lawyer but I always enjoyed the more theoretical aspects of law and reflecting on whether it's just an questions of that of that nature. More than the practice although there are some aspects of practice I enjoyed and also I I learned that as I moved into teaching I quite enjoy teaching I enjoy interacting with students and and as I've progressed into all this I realize that I like research and writing and yeah, the teaching and research suits me a bit better than practice.
Darshan
So but but you You are not as evident from your, from your accent you're not from Australia, is that correct?
Allan
No, no, I'm, I'm originally from Scotland and I did practice in Scotland are the sort of medium sized firm in in Edinburgh. first and then I, I practice moved to Hong Kong and I practice with Baker McKenzie is a commercial litigator for a while. And then in Sydney, I've I've predominantly been in teaching and research. So I've admitted in all those jurisdictions,
Darshan
do you find the principles of law to be similar between Australia, Hong Kong and the UK? Because of the fact that the UK it's often English law that gets applied?
Allan
Yeah, yes. Yes, I do. Although Australian law in Hong Kong and the law in Hong Kong are both more similar to English law. Scots law is a little bit different. Interesting. So it's probably it's probably easier to retrain in another in Hong Kong or in in an Australian jurisdiction if you came from England and from Scotland, but Scotland's not too bad, but it's just a bit a little bit more different.
Darshan
Now, of course, if I was a betting man, I would have gone the other direction. I would have thought that Hong Kong law would be more different or Australian law would be more different, but I'm, I love being surprised. Let me ask you a question. So as your your Did your interest in neuro writes start as early as your time in Scotland or did it sort of emerge in Sydney itself.
Allan
It emerged in Sydney I was initially interested in, in in Free Will the philosophical problem of free will. So when I was an undergraduate law student, it's in Scotland Aberdeen University, I learned of the the philosophical problem Free Will where I studied criminology. And really, that interest is being something that stayed with me and I did a PhD that was connected. That raised the freewill problem. I looked at behavioral genetics and sentencing. And then I got into neuroscience. And the law, which also seems to have relate to free free will and then from neuroscience and law got a new technology and the law. And I started looking at new technology and the criminal law. So you know, if somebody acts by way of brain computer interface, if you think about the criminal laws, this actus Reyes, there's something odd about our brain computer interfaces, media mediated actus Reyes, because it's like an action without any, any traditional bodily involvement. And so I started to get interested in those questions. And then I connected with Professor rafeal ust who's a neuroscientist at Columbia University in New York. And as a result of that, and discussions with him and learning about what he was involved in, I started to think Well, actually, the the Human Rights aspects of this is quite important. It's not just criminal law doctrine. It's human rights that need to be paid attention to, in the context of new new technologies.
Darshan
So so it's fascinating to have a bunch of questions that came out just that little, little bit you gave the first one that really came up to me, you talk about the freewill problem. What is the freewill problem.
Allan
So the freewill problem appears in a number of forms. The the one that I'm most interested in is is sort of a secular form. in which you you imagine, if you imagine, as the we're we're part of the world where we're made up of similar stuff as the rest of the world, including a table and including a rock, and we're acted on by natural forces. And yet we when we make decisions, we think we're, we're free to do this way, and go this way or that way, or choose this or choose that. And this, this sort of viewing of ourselves as part of the natural world and acted on by forces seems to throw that into question. In the context of criminal law, you know, you might think, well, if you think about all the influences on on a defendant or offender, if they've been convicted, they've got social influences. They've got biological influences about the way they're constituted, and things have happened to them. And once we start to think about all these things, and the way that various other things have acted upon people, we start to think well, are they really free? And if if we think they're not free, then that seems to have consequences for punishment. You know, in in Australia, Hong Kong, Scotland, American jurisdictions, other jurisdictions, there's a retributive element to criminal law. And if if people are not really free, if they don't have some kind of free will, well, then that draws into question whether criminal punishment is or the retributive power of criminal punishment is, is justified. So it's a it's a sort of, philosophical problem, that's also a problem who for for anybody who's concerned about say, for example, the justification of, of criminal punishment. So that's kind of my my, my my interest on it is the context of criminal punishment.
Darshan
I love I have a couple of questions that come out of that one of the things that is really gathering a lot of steam right now Well, I'm gonna I'm gonna raise this point, and I'm going to raise another point, you can combine them however you want. But one of the things that's really gathering steam right now, is this idea of social determinants of health. Have you ever heard that term before?
Allan
Yeah, I have. Yeah, yeah. So
Darshan
if you know what it is, I won't try to explain it to you. But for the audience. It's basically as you know, the, the other factors that affect what your health care will look like. So if you are a poor child in a, in one of the ghettos, you're unlikely to get the same opportunities to improve your health as a rich kid in the suburbs, which is very similar to the same concept you're talking about in terms of freewill, which is you just have a fewer, you have a different set of opportunities. And therefore, your your thought process and your your access to opportunities is different. That goes to your freewill question, if you will. I guess my that's my first thought. And my second question, that I guess my second thought that goes along with this is what you're describing is really tackling the retribution question, which is if someone got hurt, is it really my fault that you got hurt? Or was I forced into that position without backed into that position? Which is, which is a very elevated sense sense a thought process, if you will. But doesn't that take away something from the person who actually got hurt? And what is your thought process? As you analyze freewill in that context, should you only look at the or should I guess if you start taking away this retribution element, does that place the person who was injured in a worse off situation? If that question makes sense?
Allan
I think the that question it, it really underscores. Why is the freewill problem? Because on the one hand, you can you can look at it one way and you can think, Okay, well, the offender was acted on by all these forces. And you can think about their life and the opportunities they had and their abusive father or Oh, and their peers who are all gang members. And then you can you can start thinking, well, how free were they? But then you start thinking about the perspective of the victim, maybe maybe maybe there's a victim who's got a disability or something as a result of some violent offending. And then you, you start to think, well, surely they deserve some punishment. And the difficult thing is that you're looking at these these thing in this two different ways. We've left out the community at the moment, there's also community protection. But you're looking at the thing in these different ways. And they both seem right, and then they can't both be right. And that's why it's the freewill problem. You know, it's a, it's a problem, because it's one of these long running philosophical problems that last because it's it's so difficult. And there are various perspectives on it. That all seem right. I can't all be right.
Darshan
I love I love the topic. Let's sort of take that a little bit further, though, as I see it, you raise the issue of neuro technology and criminology, if you will, and how you sort of went from the freewill problem all the way down there, and really raised the question that that I've that we've always sort of talked about, which is, as we start talking about cars coming into automate up AI, supplemented cars, if you will, coming on to the roads, we always talk about that, that problem, or AI supplemented trains you the problem of, there's four people on one track and three people in the other, and you're going to send a train down. How do you decide which which track your chain should go on? Obviously, that that seems to have no implications on hell on newer technology. So let's let's connect that instead of it being a train. What if it is someone sitting in a wheelchair, and the wheelchair wheelchair is barreling towards someone the wheelchair is now operated using some kind of AI? I guess my question to you as you start pondering the question of neuro technology and criminology, if it's someone who's responsible, is it the person in the wheelchair who presumably have very little control it Is it the wheelchair itself? which presumably is sort of agnostic to who it hits? Is the people for being in the in the, in the path of the wheelchair? Or is it someone else? Because this is becoming a real problem as we start exploring autonomous cars.
Allan
So we think about an autonomous wheelchair, which are we thinking about a brain controlled? wheelchair?
Darshan
Let's start with the economist, and then we'll go to the brain control.
Allan
The Yeah, the autonomous vehicles. So it's a sort of an autonomous vehicle. You Yeah, that though? That's a those are difficult questions like, the, what one of the problems is that there's a problem that many people can be involved. So for example, maybe the maybe it's not completely autonomous, and maybe the wheelchair user has got some kind of override capacity. And then also, if it has been, it has been created by some company, and then within the company, there are various people that have had a roll in the in the algorithm. And so yeah, that's a that's a very, very difficult money question. I must say, it's not the one that I've focused on my, my focus is, would be more on the newertech. One, so the brain controlled one.
Darshan
Interesting. I would have thought that the autonomous was a pipe. Well, it's AI. So you take one step behind, and you go to New York tech. So talk to me, how you, what is it rubric and analyzing a situation like that in the context of newer technology?
Allan
So the debates about new technology overlap very significantly, with debates about AI, you know, so for example, you can have a new technological device, like say, for a wheelchair that might try and predict the intentions of the user in order to sort of make it more usable, in a way that in the way that that Microsoft Word, predicts text, and it uses a kind of machine learning type approach to, to do that. So they these these questions do overlap. But it raises an interesting question, you know, like, say, the, the person drives the wheelchair into somebody kills them. So let's say it let's think about in a criminal context, you know, you might think, Well, what about gross negligence manslaughter? That's why, but I'm not sure what the American in your jurisdiction has chosen, right? That determine B? Well, let's say the there was some kind of device that was part of the offender's brain it was implanted into their brain and that device malfunctioned. So one way of thinking about it might might be to think about it. Well, they there was a defendant who, who had a device implanted in their brain, and they had no reason to think that it was going to malfunction, it did malfunction. So they're not grossly negligent. Another way of thinking about it might be well, if it's integrated enough into them, then it's actually part of part of the defendant. So the defendants no longer the brain implanted defendant is no longer a person who's using a tool, but they're a cyborg, who's caught partly organic and partly inorganic. Then on that view, you might think, well, they malfunctioned. And so yeah, they didn't meet the right, the right standard. So maybe they're grossly negligent. So it sort of raises an interesting question about where does the defendant end? And where does technology begin? Which I think is a sort of interesting question for the criminal law. Is it someone using technology or is a cyborg as part of a technological?
Darshan
It's a really interesting question, you, you you sort of take that and then move to the right, which is you talked about the technology malfunction, or did they malfunction. Now, the closest the closest corollary to that, as I see it, is the idea of mental incapacity. And to say that, if I injured you, but I'm mentally incapable of understanding that I did that. The solution is not sending me to jail, the solutions sending me to a hospital and having me be fixed. I don't know the right words, fix the right the right course i'll be cured, or at least resolved in some way. But the point being in either scenario, the idea is I should be taken out of general society, my problems will be addressed and reintroduced back into general society faster than if I was, if I have free will, if you will, um, you you want to say something before I go to the next part of that question, or I guess my question is, in a situation like a, quote, unquote, Cyborg? Is it appropriate to take the person get the technology fix? Maybe it's just replacing the actual technology, addressing the actual concerns, whatever it is, and then introducing them back into society? And if so, it seems like it would, it would go to the central point of what you described as integrated enough. How do we define integrated enough?
Allan
Just to go to I'd like to just say something about the first point because, yeah, okay, so we've got the mental illness defense, you know, sometimes known as the insanity defense in some parts of the jurisdiction. And yeah, if somebody if a defendant is successful in putting that forward, then they go into a therapeutic regime where the aim is not punishment, but it's sort of a therapeutic aim, to get them get them better. But in order to get into that therapeutic range, therapeutic regime has got to satisfy the McNaughton test, you know, so they've got to not know the nature and quality of what they did? Or if they did they go or not know, it's wrong, according to standards or ordinary people. Know, it's not clear that the Bs, the this wheelchair situation, we described there, the person would fall into that, that, that, that way of getting into the therapeutic regime. So if we are going to, if the idea is okay, well, they are a cyborg, they need to be fixed. Well, that seems to require some kind of redefinition of what to show of the criminal justice paradigm and into the therapeutic regime, because the current, the current way of getting into a therapeutic regime doesn't seem to fit it.
Darshan
I agree, which is, which is why I love pondering these questions with someone as smart as you, because then I get to play around with the concept and see what see what pops out. Is there any thought process around what integrated enough means?
Allan
Well, the So I sort of briefly raised this question and I wrote a paper on brain computer interfaces and the revenge porn offense it's called euro bionic revenge porn. And so it's a sort of striking title. So if you Google that you can find the paper but the, I got, I got a reply from a philosopher called crema Thompson and he discussed this question of what my adequate integration be a bit more. And, you know, so I think, as I remember what what he said, was, if you, if you think about something, like a bit of technology, like a map, you know, a traditional map a paper map, you know, you you hardly ever consult the man, you consulted once, once in, in a blue moon, Blue Moon, when you're a traditional mat when you're trying to find somewhere so that's not really integrated into you. Something like a smartphone, you know, you're you're relying on that a bit more, it's a bit more kind of, part of your, the way you remember things and that kind of thing, and that I'd be better. And then if something is is kind of, you're using it all the time, and it's really part of your almost become part of your ordinary thinking process, then that might be integrated and AF. I haven't really done that explanation. Justice, but it is it is it is something that that people are thinking about in this in this context, you know, so there's some esophageal work on what it might be for a bit of technology to be integrated enough for it to count as part of you, I think the philosopher Andy Clark, for a big name philosopher, who's he's, he's considered that, that question. But but but I guess my so I just touched upon I just raised it in my paper. I didn't try and answer the question of what's integrated enough. But I think an interesting point for the Criminal Lawyers and and other areas of lawyers that they might have to do that, you know, there might need to be some case law. If a defendant says, Well, that's just the two I was using. Yeah, the prosecution think Well, no, no, no, you're you're not you're kind of this is integrated into you. And they might want to make such an argument to say you can't just blame the tool. You You failed here. And so the that would force the development of the common law. Here's what we have in common law by legislation, but sorry, can
Darshan
now do so do you think that the distinction between and law is if the courts have had a chance to rule on it?
Allan
The distinction between ethics and law? Yeah, I mean, the fact question is, you know, the, it's a big question in legal philosophy, isn't it like? And what, to what, to what extent are these two connected or different and, you know, some, some views are very different. And some are this there's a closer connection. I mean, one of my friends who appears in in the High Court, here is the top floor and he he thinks the higher up, you get up in the court hierarchy, particularly up to the High Court, they the the, the more receptive the courts are to an ethical argument, because the law is run out. And that's why that's why the cases is up there and the High Court here or your Supreme Court, because although is kind of run out of it. So maybe, maybe Dana, the lower courts, they're a bit more separate than in the High Court.
Darshan
As usual, Alan, we start having fascinating conversations, and then we run over on time. This is one of those times, we're already at 28 minutes. And as you know, we aim for about 15 to 20. So before we go, I have four questions to ask you. My first question is, well, first of all, let's let's remind everyone where they can find you. And that is amcc 468 [email protected]. Is that correct? That's right. Perfect. My second question is based on what we've discussed, what is something you'd like to ask the audience?
Allan
So I was going to talk a bit more about neuro REITs. But I think the question I'd asked to the, the audiences, how should How should emerging neuro technologies be regulated? So what what what should regulatory bodies, for example, and legislatures be doing to, you know, to try and make sure that your technologies develop in a responsible way?
Darshan
I'll let me start by like I told you, I always try to answer the question first, to see if I can at least be the first person to answer it. I think my the way you would start is by defining what integrated enough means? I think without answering that question, the rest of the answer is a lot easier. Because if you answer that question clearly, then the moment you become a cyborg is much, much more easily defined. And therefore everything criminal criminology wise, is much clear. Until that point, it's more of a device solving problem, and not a person solving problem. So I think if I was king of the world, and I had to define what the appropriate solution would be at start from that question, because that to me falls at the crux of the entire problem. Have you seen it done differently? Or have you I know Chile's doing something different so what's your thought process there?
Allan
Well the the the Chilean things a bit more general is it's not looking at the specific troubles that the criminal law my time you know, it's a bit more like looking at the question well, how do we regulate neuro technology you know, we saw it happen when social media when kind of wrong and you're taking off You can also go wrong and there they are trying to set work out some principles for how newer technology and the development and its use should be governed in a more kind of general sense. And so so that's, that's, that's really what they're doing.
Darshan
Let me ask you two other questions. What is something you've learned in general over the last month that you think my audience would like to love to sort of hear?
Allan
So I've been, I did a interview for a Romanian radio show recently. And the the, the presenter of the show, drew my attention to a school of thought called Russian cosmic ism. I hadn't I hadn't heard before heard of before, but so you might think of in in Silicon Valley, they've got you know, people like Elon Musk and Ray kurtzweil, they've got a kind of transhumanist thinking they think we should enhance our capacities and maybe compete with AI and yeah, and that sort of thing. Whereas there's a specifically Russian kind of thinking that's got got something in common with transhumanism, but it's not the same. And so I've, I've enjoyed reading a bit about this, this, this, this, this sort of somewhat transhumanist thought, in Russia.
Darshan
I definitely have to look this up. This sounds fascinating, because I'm fascinated by consumerism. So together, there's a totally different school of thought sounds fascinating. What's something that made you happy in the last week?
Allan
Well, unfortunately, we're in lockdown here. So the the thing that sort of made me happy is lucky. Luckily, it's quite sort of sunny and there is you know, I'm, I've walked down to the opera house yesterday at Sydney, and that's a lovely walk. And so that, that, that that kind of cheered me up as a week for things to to improve on the health situation in Australia.
Darshan
I visited Sydney only once, but I loved going by the rocks to the Sydney Opera House. Yeah. Gorgeous. Well, as always, Dr. McKay It was wonderful to have you on, and I do hope you'll consider coming back. Sure, and just want to say thank you to the audience, and we'll be back soon. Stay tuned.
Allan
Thanks very much.
Allan
This is the DarshanTalks podcast, regulatory guy, irregular podcast with host Darshan Kulkarni. You can find the show on twitter at DarshanTalks or the show's website at DarshanTalks.com
