The idea of the human mind as the ultimate domain of absolute protection from external intrusion has persisted for centuries. In a masque written by John Milton in 1634 a young woman is bounded to an enchanted chair by a debauched man named Comus. Despite being restrained against her will, she claims: “Thou canst not touch the freedom of my mind,” confident of her capacity to protect her mental freedom from any external manipulation. In 1913, historian John Bagnell Bury wrote: “A man can never be hindered from thinking whatever he chooses so long as he conceals.”
Today, however, this presumption might no longer hold. Cutting-edge neurodevices, such as sophisticated neuroimaging and brain-computer interfaces (BCI), enable to record, decode and modulate the neural correlates of mental processes. Research shows that the combination of neuroimaging technology and artificial intelligence allows to “read” correlates of mental states including hidden intentions, visual experiences or even dreams with an increasing degree of accuracy and resolution.
While these advances have a great potential for research and medicine, they pose a fundamental ethical, legal and social challenge: determining whether, or under what conditions, it is legitimate to gain access to, or to interfere with another person’s neural activity.
This question has particular social relevance since many neurotechnologies have moved away from a solely clinical setting and into the commercial domain, where they are no longer subject to the strict ethical guidelines of clinical research. Today, companies like Google and Verizon use neuroimaging technology and other neuromarketing research services to detect consumer preferences and hidden impressions on their advertisements or products.
Attempts to decode mental information via neuroimaging are also occurring in court case, sometimes in a scientifically questionable way. For example, in 2008, an Indian woman was convicted of murder and sentenced to life imprisonment on the basis of a brain scan showing, according to the judge, “experiential knowledge” about the crime. The potential of neurotechnology as a forensic tool has raised particular attention in relation to lie detection for interrogation purposes. In spite of experts’ skepticism, commercial companies such as No-Lie-FMRI and Government Works Inc. are marketing the use of FMRI- and EEG-based technology to ascertain truth and falsehood via brain recordings. In parallel, armed forces are testing neuromonitoring techniques to detect deficiencies in a warfighter’s brain activity and utilizing brain stimulation to increase their alert and attention.
In 2015, the journal Science released a special issue titled “The End of Privacy,” highlighting how new technological trends from big data to ubiquitous Internet connections, make “traditional notions of privacy obsolete.” In a sense, neurotechnology can be seen as just another technological trend that might erode our privacy in the digital world and there is little we can do about it. However, given the intimate link between mental privacy and subjectivity we might not be so willing to accept this conclusion. In his famous 1984, George Orwell projected a future where “nothing was your own except the few cubic centimeters inside your skull.” In fact, when mental information is no longer secluded, nothing is secluded, and the very notion of subjectivity—the quality of existing in someone's mind rather than the external world—becomes empty.
According to a new article, as neurotechnology disseminates outside the clinical setting, we are facing a societal challenge: determining what rights individuals are entitled to exercise in relation to their mental dimension. According to the authors—myself from the University of Basel and Roberto Andorno from the University of Zürich—this challenge might require the reconceptualization of existing human rights and even the creation of new neurospecific human rights.
A right to cognitive liberty, widely discussed among neurolawyers, would entitle individuals to make free and competent decisions regarding their use of neurotechnology. A right to mental privacy would protect individuals against the unconsented intrusion by third parties into their brain data as well as against the unauthorized collection of those data. Breaches of privacy at the neural level could be more dangerous than conventional ones because they can bypass the level of conscious reasoning, leaving individuals without protections from having their mind involuntarily read. This risk does not apply only to participants in predatory neuromarketing studies and disproportionate uses of neurotechnology in courts, but to general individuals as well. With the growing availability of Internet-connected consumer-grade brain-computer interfaces, more and more individuals are becoming users of neurodevices.
Last week Facebook unveiled a plan to create brain-computer speech-to-text interface to translate thoughts directly from brain signals to a computer screen, bypassing speech and fingertips. Similar attempts are being made by major mobile communication providers, Samsung in particular. In the future, brain control could replace the keyboard and speech recognition as a primary way to interact with computers.
With interconnected neurotools becoming potentially ubiquitous, novel possibility for misuse will arise—cybersecurity breaches included. Computer scientists have already demonstrated the feasibility of hacking attacks aimed at extracting information from BCI-users without authorization. In addition, research shows that connected medical devices are vulnerable to sabotage. Neuroscientists at Oxford University suggest that the same vulnerability affects brain implants, a phenomenon labeled “brainjacking.” Such possibilities of misuse might urge a reconceptualization of the right to mental integrity. This right, recognized by international law (Article 3 of the EU's Charter of Fundamental Rights) as a right to mental health, should not only protect from mental illness but also from illicit and harmful manipulations of people’s neural activity through the misuse of neurotechnology.
Finally, a right to psychological continuity might preserve people’s personal identity and the continuity of their mental life from unconsented external alteration by third parties. Psychological continuity is an important issue in the context of national security, where mandatory personality-changing interventions might be justified in light of greater strategic goals. Brain interventions that reduce the need for sleep are already in use in the military, and it’s easy to imagine interventions that make soldiers more belligerent or fearless. These possibilities have already raised attention among legislators. Back in 1999 a European Parliament committee called for a global ban of research “which seeks to apply knowledge of the chemical, electrical, (…) or other functioning of the human brain to the development of weapons which might enable any form of manipulation of human beings.”
Calibrated normative approaches should guarantee the alignment of neurotechnology development and personal freedoms. At the same time, they should avoid fear-mongering, unrealistic narratives that might harm scientific progress. An open debate involving neuroscientists, legal experts, ethicists and general citizens is required to maximize the benefits of advancing neurotechnology while minimizing unintended risks.