New Human Rights for the Age of Neuroscience?

By Neuroskeptic | April 29, 2017 6:55 am

Do we have a human right to the privacy of our brain activity? Is “cognitive liberty” the foundation of all freedom?

An interesting new paper by Swiss researchers Marcello Ienca and Roberto Andorno explores such questions: Towards new human rights in the age of neuroscience and neurotechnology

unsolved_brainIenca and Andorno begin by noting that it has long been held that the mind is “a kind of last refuge of personal freedom and self-determination”. In other words, no matter what restrictions might be put on our ability to speak or act, or what coercion is used to force us to behave in a certain way, our thoughts, beliefs and emotions are free and untouchable.

Yet, the authors go on to say, “with advances in neural engineering, brain imaging and pervasive neurotechnology, the mind might no longer be such unassailable fortress.” Developments in neuroscience allowing for the measurement or the manipulation of brain activity could, at least in principle, create new dangers to human freedom. Ienca and Andorno go on to list four rights that, they say, individuals enjoy in the face of this threat:

  • the right to cognitive liberty, “the right to alter one’s mental states through technical means, and the right to refuse to do so”
  • the right to mental privacy, “the right to prevent illegitimate access to our brain information”, as well as its sharing or publication
  • the right to mental integrity, “the right of individuals to protect their mental dimension from potential harm” e.g. through ‘hacking’ of a neuro-device
  • the right to psychological continuity, “the right to preserve personal identity and the coherence of the individual’s behavior from unconsented modification” even if the modification is not harmful per se.

In my view, this scheme is a little overcomplicated. It seems to me that there are really two fundamental rights here, which in computer terms would be called ‘read access’ and ‘write access’ to the brain.

Ienca and Andorno are saying in effect that each person has a right not to be subject to ‘reading‘ of their brain activity without informed consent (mental privacy). The other three rights can be summarized as the right to prevent unauthorized ‘writing‘ of ones neural activity.

Now, in my opinion, it’s the ‘read‘ right of mental privacy that is most immediately threatened by modern neuroscience. While I think that ‘writing’ to the brain in any useful way is a long way off, recent advances in neuroimaging have made the idea of inferring thoughts, attitudes, and desires from brain activity rather close to reality.

Consider that it has been claimed that, using fMRI, it is now possible to detect a sexual attraction to children – pedophilia – from brain activity. Now, I have been skeptical of these claims, but I don’t think we’re that far off being able to really do this.

So let’s suppose that it’s the near future and this technology really works. You are applying for a sensitive job and you’re asked to take this scan to prove that you have no attraction to children. No fMRI scan, no job. Would that policy be a violation of your rights?

It’s one to ponder. My inclination is that it would be a violation. Not in the sense that it would be unfair to discriminate against someone merely for having a desire, but rather because no-one has a right to know my desires (or beliefs, or thoughts) except me. If I act on a desire, then I’ve made it important to others, but the desire per se is no-one else’s business.

What do you think?

ResearchBlogging.orgIenca M, & Andorno R (2017). Towards new human rights in the age of neuroscience and neurotechnology. Life Sciences, Society and Policy, 13 (1) PMID: 28444626

CATEGORIZED UNDER: ethics, law, papers, select, Top Posts
  • Geoffrey Aguirre

    In the US legal system, there is a salient difference between something that you “have” and something that you “know”. The former is subject to protections regarding search and seizure (4th amendment), the latter is something that is protected by prohibitions against self-incrimination (5th amendment). These protections are not absolute and can be overrriden under different circumstances.

    What is the status of the password to unlock your phone? Is it something you have or know? Does this status change if the government has access to technology that can obtain the information from you?

    The whole dichotomy of having and knowing breaks down in the mix of biology, biometrics, and the rejection of Cartesian dualism.

    There is a great article on this topic by Nita Farahany:

    • Neuroskeptic

      Thanks for the comment! This is a key issue that Ienca & Andorno also discuss.

      From my point of view, your brain activity and any information that could be derived from it (e.g. your password, desires, etc.) must be classed as something you know.

      Because if my brain activity is something I have, then it’s not clear what, if anything, wouldn’t fall under the class of things that I have. e.g. my memories would no longer be subject to 5th Amendment protection, once it became possible to decode them by neuroscientific means, if brain activity itself isn’t subject to the 5th Amendment in some sense.

  • Uncle Al

    “The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. [snip] But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers” Ayn Rand, Atlas Shrugged (1957.

    Everybody must default be given electroconvulsive therapy. Think of the national cost savings in diagnostics procedures.

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  • Thomas Hope

    While it’s fun to consider these thought experiments, I think you’re over-estimating the importance of ‘mind-reading’ to this particular experiment.

    The imaging work in this area is really just a brain-focused variant on polygraph techniques that have been around for decades: (i) measure some signals in context X; (ii) measure the same signals in context Y; (iii) measure the same signals in context Z and use a similarity metric to argue that the subject interprets Z like X more than Y. Security-sensitive jobs often already require at least some sort of polygraph – indeed, more than one – though of course everyone recognises that they can be beaten. There’s also no reason why you couldn’t measure sexual preferences with a polygraph (lots of signs of arousal in the body rather than the brain). And yet, as far as I know, ‘pedo-detection’ simply isn’t a popular application of the technique. This is probably for exactly the reasons you suggest: i.e. what do we do with a positive finding, given that: (a) the finding is not particularly confident; and (b) the subject hasn’t physically done anything wrong?

    The technology required to ‘activate’ your thought experiment already exists, in other words, but hasn’t brought the world down around us. At least on its current track, I would also argue there’s very little prospect of the ‘mind-reading’ stuff becoming dramatically more reliable or available any time soon. Unless and until our understanding of the brain improves a lot (i.e. to the point where we can do more than just compare noisy signals in different contexts), I wouldn’t worry about this stuff at all.

    • Neuroskeptic

      I think this is a good point, but I also think that neuroscience has the potential to go beyond the “polygraph” level of measuring presumed physiological correlates of an emotional state.

      You’re right that the example I gave is little more than an fMRI polygraph (though it might plausibly be more accurate than a polygraph as it could distinguish desire from other kinds of arousal) but I don’t think the same can be said of something like this: Decoding individual natural scene representations during perception and imagery.

      • Thomas Hope

        You might be right, but I don’t think the cited reference makes the case: the multivariate methods they use there don’t detract from the basic point that the work compares ‘signals’ when looking at some stimuli to ‘signals’ when looking at others, in a subject-specific manner. That they find correspondences when subjects imagine scenes is interesting, but irrelevant to our discussion. Unless and until we understand specific brain states in a theory-driven, rather than data-driven manner (e.g. can compare across subjects without calibration against known stimuli), I contend that this work is precisely ‘brain-polygraph’, and nothing more. And I, for one, am not optimistic that our understanding of the brain will reach the required level any time soon.

  • reasonsformoving

    A right to alter mental states through technical means? Can’t I do that by watching, behaving, interacting with the world? Indeed we can and all of those things have limitations. “Manipulation of brain activity” is already happening as I read this blog.

    It is inconceivable to divorce experience and behavior from the apparatus that permits it.

    • J. Kevin Dix

      Establishing a right to alter mental states through technical means would essentially eliminate all legal restrictions on drugs (including alcohol and tobacco) and any non-chemical means of mood manipulation which exist now or may exist in the future. This strikes me as unsafe without serious limitations to this “right”.

  • OWilson

    The only human right you have is the one you are willing to defend!

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  • Hue White

    I think some of the assumptions, at least stated in the blog post, need some reviews.

  • KieSeyHow

    Most human laws are merely delusional states fostered by the illusion of free-will. The only real law is that of nature, physics, math, chemistry etc. Everything else about us exists only in a virtual state within our minds and social structures, as does religion and concepts such as emotion and thought. It is all really just chemical states that dictate action and reaction to stimulus. We therefore live in a superimposed “mental virtual reality” overlaying the natural realty of the universe. We try to make sense of this underlying structure through delusional concepts based upon ignorance. As human society progresses we replace these delusions with hard science. AI and MI are more likely to move exponentially faster towards this hard science since computers have perfect memory and the ability to analyze and calculate hard data in realtime; most humans do not.



No brain. No gain.

About Neuroskeptic

Neuroskeptic is a British neuroscientist who takes a skeptical look at his own field, and beyond. His blog offers a look at the latest developments in neuroscience, psychiatry and psychology through a critical lens.


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