The volume and variety of neurotechnology applications is rapidly increasing inside and outside the clinical and research setting. The ubiquitous distribution of cheaper, scalable and easy-to-use neuroapplications has the potential of opening unprecedented opportunities at the brain-machine interface level and making neurotechnology intricately embedded in our everyday life. While this technological trend may generate immense advantage for society in many ways, its implications for ethics and the law remain largely unexplored. We argue that in the light of the disruptive change that neurotechnology is determining in the digital ecosystem, the normative terrain should be urgently prepared to prevent misuse or unintended negative consequences. In addition, given the fundamental character of the neurocognitive dimension, we argue that such normative response should not exclusively focus on tort law but also on foundational issues at the level of human right law.
This proposal of neuro-specific human rights in response to emerging advancements in neurotechnology is consistent with and a logical continuation of the proposal of developing genetic-specific human rights in response to advancements in genetics and genomics as set out by the Universal Declaration on the Human Genome and Human Rights, and the International Declaration on Human Genetic Data.
The freedom of thought, freedom from slavery, torture and inhumane or degrading treatment or punishment are regarded by international human rights law as not subject to any exceptions and, therefore, as absolute rights. Absolute rights cannot be limited for any reason. No circumstance justifies a qualification or limitation of absolute rights. Absolute rights cannot be suspended or restricted, even during a declared state of emergency. The right to cognitive liberty, the right to mental privacy, the right to mental integrity, and the right to psychological continuity should also be enacted into law as absolute rights.
“Nothing was your own except the few cubic centimetres inside your skull.”
-George Orwell, 1984
The quoted sentence conveys the idea that the mind is a kind of last refuge of personal freedom and self-determination. While the body can easily be subject to domination and control by others, our mind, along with our thoughts, beliefs and convictions, are to a large extent beyond external constraint. Yet, with advances in neural engineering, brain imaging and pervasive neurotechnology, the mind might no longer be such an unassailable fortress. Today, pervasive neurotechnology applications include brain-computer interfaces (BCIs) for device control or real-time neuromonitoring, neurosensor-based vehicle operator systems, cognitive training tools, electrical and magnetic brain stimulation, wearables for mental wellbeing, and virtual reality systems. Mental decoders are capable of decoding mental states and translating them into observable outputs such as text, verbal signals or graphic images. For example, Herff and Mirkovic have independently demonstrated the effectiveness of a decoder capable of reconstructing speech from brain waves. While these advances can be greatly beneficial for individuals and society, they can also be misused and create unprecedented threats to the freedom of the mind and to the individuals' capacity to freely govern their behavior.
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