Image Credit: Martyna Adamczyk

Over the past few weeks, I’ve been exploring the legal possibilities of neural interfacing, both in the areas of copyright and in free speech. Now, though, I’d like to take the potential for neural interfacing down a notch to consider one aspect of the “virtual” web that might be built. And that’s advertising.

Advertising Technology and Neural Interfacing

There is almost no question that with the advent of neural interfacing will come advertising. Advertising and marketing are huge parts of modern capitalism, and there’s no reason to assume that companies will all of the sudden halt its use. For the most part, such advertising will remain at the level it is today—ubiquitous annoyance. For example, you might be visiting a virtual reality web site, which simulates a town hall feel for political discussion. On the walls of that room will probably be ads for all of the various sponsors of the website. Annoying, but no different than the proliferation of billboards and posters that exists today. Right?

Wrong. Where the problem begins is when advertising hits you on a deeper level than that. The technology that allows for stimulation of the sensory inputs in the brain to create virtual reality can stimulate more than just the senses. For example, in his fantastic comic book series Transmetropolitan, Warren Ellis developed the concept of the “buy bomb.” In a nutshell, a “buy bomb” entered your brain through the normal sensory process of watching TV, but the ads themselves made their way into a person’s brain. The result is that a person started watching ads while they were dreaming–a pretty nasty prospect.

But it gets worse than that. Researchers have already discovered and successfully stimulated the regions of the brain that lead to the sexual response. It’s not a large stretch to imagine that some unscrupulous advertisers may take advantage of this. Imagine an ad that, when viewed or encountered, triggers orgasm. That company is likely to have a very successful marketing campaign. Of course, advertisers are unlikely to be so crude. More likely, stimulated emotions will be used in a manner designed to subtly manipulate, rather than overtly so. But what are the legal ramifications of such advertising? Are they protected speech? Can the government regulate them to prohibit the use of stimulated emotions to manipulate? The basic answer to these questions is that the government would almost certainly be able to regulate the use of stimulated emotions in the context of advertising.

The First Amendment and Advertising

Commercial speech and advertising is usually protected by the First Amendment. However, if a particular advertisement is false or misleading, then it does not fall under the protection of the First Amendment. In the case of advertisements, it may well be that certain types of stimulated emotions could be considered false or misleading. In all likelihood, such a finding would be made in the case where stimulated emotions are made in a fashion that is manipulative. Again, there is a useful analogy to subliminal messages here. The theory of subliminal messages in advertising is that they can be used to manipulate consumer behavior. As a result, the Federal Trade Commission considers advertising containing subliminal messages to be deceptive. Additionally, the Bureau of Alcohol, Tobacco, and Firearms has adopted regulations that specifically prohibit subliminal messages in alcohol advertising on the ground that such advertisements are deceptive.

Similarly, stimulated emotions in advertisements that result in manipulation would also likely be considered to be deceptive, and therefore, not protected by the First Amendment. However, it’s important here to note the difference between the use of stimulated emotions to persuade and the use of stimulated emotions to manipulate. There is a subtle distinction there that may well depend on the technology avaiable at the time, as well as the specific facts at issue. In cases where the use of stimulated emotions is not intended to manipulate, policymakers may not be able to show that said use is deceptive, which means that regulations may have a harder time passing constitutional muster.

Thus, the recourse for consumers who don’t want to have their emotions manipulated by advertising is probably going to be found in a line of legal thought discussed in Rowan v. Post Office Dept.. As I stated in my article a couple of weeks ago in the context of virtual art that stimulates emotions:

Thus, in the world of neural interfacing, it is likely that some method must be developed to enable a computer user to provide notice that he does not want to have any, or perhaps simply some particular emotions to be stimulated while he is viewing such a piece of art. Alternatively, the artists or host websites of the artists work may provide warnings and consent indicators that the website provides emotional stimulation.

However, while such consent indicators and warnings might prevent mainstream advertisers from such means, it won’t do thing one to stop spammers, unwanted “pop-up” ads, and other types of malware advertising that we see on the internet today. Frankly, the idea of a Nigerian scammer actually being able to manipulate one’s thinking through unwanted advertising is scary. But here’s the thing–technology may well make it possible.

Which is almost enough to make you wonder if it’s worth developing a neural interfacing computer in the first place.