ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, April 17, 2023

Mind Control and Contracts

Philip K DickUsually, I rely on my colleague Marc Blitz to freak me out about scenarios straight out of Philip K. Dick (right), in which technology takes over or surveils our brains.  But Marc is concerned with the First Amendment of Fourth Amendment ramifications of such technology, and that constitutional stuff is easy to ignore, and it's all made up anyway.

But and published an article in the Law Society Journal Online last week that suggests that new advances in neurotechnology may soon have an impact on a field of study that matters -- contracts law.  It seems that the good people who have brought us companies like Microsoft, Twitter, Amazon, and SpaceX are developing technologies that can enable monkeys to play video games through brain implants.  More importantly, similar technologies have helped human beings interact with computer technology and thus to to communicate in ways that they could not do without the aid of the implant.

That sounds good.  The technology might have therapeutic potential for treating Parkinson's disease, epilepsy, and other neurological conditions.  Perhaps some day it really will be possible for a President to de-classify materials just by thinking it!  But wait, perhaps we should be concerned if companies, whose goals include profit maximization, have access to our thoughts.  Might there be some danger of thought manipulation?  The authors imagine that the manufacturers of such technology might use it to overcome impulse control and get consumers to buy things that they otherwise would not buy.  Would such purchases be avoidable contracts?

The authors think that doctrines like unconscionability can provide a remedy for individuals manipulated into contracts through technological means, and they think the doctrine is robust enough to overcome any contractual waivers that vendors might include in their form contracts.  The authors acknowledge the difficulty of proving that the technology caused the purchase.

I think they are on to something.  I can't imagine why anyone would pay $80,000-$110,000 for a Tesla Model X.  Perhaps they are being manipulated through brain implants.  If not, perhaps we have little to fear from neurotechnology, as the technology of advertising is already advanced enough to overcome our impulse control and common sense.  More alarmingly, how did it come about that countries around the world have outsourced responsibility for the launching of satellites, which constitute vital communications infrastructure with undeniable relevance to national security, to a private company owned and controlled by a mercurial plutocrat with a pronounced libertarian streak?  I don't think even Philip K. Dick ever imagined that one.

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