Rapid advancements in human neuroscience and neurotechnology open unprecedented possibilities for accessing, collecting, sharing and manipulating information from the human brain. Such applications raise important challenges to human rights principles that need to be addressed to prevent misuse or unintended negative consequences. This proposal assesses the implications of emerging neurotechnology applications in the context of the human rights framework and suggests that existing human rights are not sufficient to respond to these emerging issues. After analysing the relationship between neuroscience and human rights, we identify four new neuro-specific human rights that will be vital in the effort of protecting the human brain: the right to cognitive liberty, the right to mental privacy, the right to mental integrity, and the right to psychological continuity.
The right to cognitive liberty
The right of individuals to use emerging neurotechnologies as well the protection of individuals from the coercive and unconsented use of such technologies. The right and freedom to control one’s own consciousness and electrochemical thought processes is the necessary substrate for just about every other freedom. Cognitive liberty is necessary to all other liberties, because it is their neuro-cognitive substrate. As such, cognitive liberty resembles the notion of ‘freedom of thought’ which is usually considered the essential justification of other freedoms such as freedom of choice, freedom of speech, freedom of press, and freedom of religion. Cognitive liberty is a conceptual update of freedom of thought that takes into account the power we now have, and increasingly will have to monitor, manipulate, and alter cognitive functions. Some legal scholars such as Boire and Sententia have interpreted the right to cognitive liberty with special focus on the protection of individual freedom and self-determination from the State. For example, Sententia has claimed that “the State cannot forcibly manipulate the mental states, and implicitly the brain states of individual citizens”.
Given its conceptual complexity, cognitive liberty is multi-dimensional. Bublitz recognizes at least three “interrelated but not identical dimensions”. These are: (i) the liberty to change one’s mind or to choose whether and by which means to change one’s mind; (ii) the protection of interventions into other minds to protect mental integrity, and (iii) the ethical and legal obligation to promoting cognitive liberty. These three dimensions configure cognitive liberty as a complex right which involves the prerequisites of both negative and positive liberties: the negative liberty of making choices about one’s own cognitive domain in absence of governmental or non-governmental obstacles, barriers or prohibitions; the negative liberty of exercising one’s own right to mental integrity in absence of constraints or violations from corporations, criminal agents or the government; and finally, the positive liberty of having the possibility of acting in such a way as to take control of one’s mental life.
The right to mental privacy
The formal recognition of a right to mental privacy, which aims to protect any bit or set of brain information about an individual recorded by a neurodevice. This right would protect brainwaves not only as data but also as data generators or sources of information. In addition, it would cover not only conscious brain data but also data that is not under voluntary and conscious control. Finally, it guarantees the protection of brain information in absence of an external tool for identifying and filtering that information. Paul Wolpe has suggested that due to fears of government oppression, we should draw a bright line around the use of mind-reading technologies:
“The skull should be designated as a domain of absolute privacy. No one should be able to probe an individual’s mind against their will. We should not permit it with a court order. We should not permit it for military or national security. We should forgo the use of the technology under coercive circumstances even though using it may serve the public good”
Similarly, it has been argued by J Stanley that “non-consensual mind reading is not something we should ever engage in”. The claim is that mind-reading techniques constitute “a fundamental affront to human dignity”. Consequently, “we must not let our civilization’s privacy principles degrade so far that attempting to peer inside a person’s own head against their will ever become regarded as acceptable”. In short, the right to mental privacy is to protect people against access to their brain information and to prevent the indiscriminate leakage of brain data across the infosphere.
The right to mental integrity
This reconceptualized right should provide a specific normative protection from potential neurotechnology-enabled interventions involving the unauthorized alteration of a person’s neural computation and potentially resulting in direct harm to the victim. For an action to qualify as a threat to mental integrity, it has to: (i) involve the direct access to and/or manipulation of neural signaling (ii) be unauthorized –i.e. must occur in absence of the informed consent of the signal generator. As neurotechnology becomes part of the digital ecosystem and neural computation rapidly enters the infosphere, the mental integrity of individuals will be increasingly endangered if specific protective measures are not implemented. The forced intrusion into and alteration of a person’s neural processes pose an unprecedented threat to a person’s mental integrity.
The growing field of memory engineering will likely represent a paramount challenge to the right to mental integrity. Several techniques have been developed to engineer, boost, or selectively erase memories from a person’s mind. For example, Nabavi and colleagues used an optogenetics technique to erase and subsequently restore selected memories by applying a stimulus via optical laser that selectively strengthens or weakens synaptic connections. These findings may hold big potential for the treatment of such diseases as Alzheimer’s and PTSD. At the same time, however, the misuse of these techniques by malevolent actors may generate unprecedented opportunities for mental manipulation and brainwashing. On the long term-scenario, they could be used by surveillance and security agencies with the purpose of selectively erasing dangerous or inconvenient memories from people’s brains as portrayed in the movie Men in Black with the so-called neuralyzer. The potential motives of illicit memory alteration are various, including increasing national security or exerting control over individuals or groups.
The right to psychological continuity
The right to psychological continuity can be seen as a special neuro-focused instance of the right to identity. What the right to psychological continuity aims to prevent is the induced alteration of neural functioning. The right to psychological continuity will protect the mental substrates of personal identity from unconscious and unconsented alteration by third parties through the use of invasive or non-invasive neurotechnology.
In addition to mental privacy and mental integrity, people’s perception of their own identity may be put at risk by inadequate uses of emerging neurotechnology. Changes in brain function caused by brain stimulation may also cause unintended alterations in mental states critical to personality, and can thereby affect an individual’s personal identity. In particular, it has been observed that brain stimulation may have an impact on the psychological continuity of the person, i.e. the crucial requirement of personal identity consisting in experiencing oneself as persisting through time as the same person. Several cases have been reported in scientific literature in which deep brain stimulation (DBS) has led to behavioral changes such as increased impulsivity and aggressiveness or changes in sexual behavior. A study involving patients treated with DBS showed that more than half of them articulated a feeling of strangeness and unfamiliarity with themselves after surgery “I do not feel like myself anymore”; “I feel like a robot”. In parallel, memory engineering technologies may impact a person’s identity by selectively removing, altering, adding or replacing individual memories that are relevant to their self-recognition as persons.
However, threats to this right are more likely to happen outside clinical settings. For instance, in the context of intelligence and military agencies, it has been reported that over the last decades violations of human rights have taken place in experiments involving brain implants, drug administrations, electromagnetic shock therapy, sensory deprivation, isolation, physical, psychological, verbal and sexual abuse, hypnosis, the attempted creation of Manchurian candidates, the implantation of false memories and induction of amnesia. Most of these experiments were conducted on unwitting and helpless civilians and in the absence of any external review or representation for the experimental subjects or any meaningful follow-up. The new knowledge and technologies in the field of neuroscience clearly offer new and more efficient possibilities for carrying out unconsented personality changes. For example, Pycroft recently reported the concern that brain implants like DBS are vulnerable to attack by third parties who want to exert malicious control over the users’ brain activity. They called this risk of modification of a person’s brain activity through unauthorized use of neuro devices by third parties ‘brainjacking’.
Negative consequences of brainjacking include (i) information theft, which would result in a violation of the right to mental privacy; (ii) cessation of stimulation, draining implant batteries, inducing tissue damage, and impairment of motor function, which would result in violations of the right to mental integrity. However, some possible consequences of brainjacking such as alteration of impulse control, modification of emotions or affect, induction of pain, and modulation of the reward system could be achieved even in absence of any violation of mental privacy and integrity. In those circumstances of unauthorized modification of the cognitive-emotional-affective dimension a different type of human right violation seems to be at stake: the violation of the right to psychological continuity.
In short, the right to psychological continuity ultimately tends to preserve personal identity and the coherence of the individual’s behavior from unconsented modification by third parties. It protects the continuity across a person’s habitual thoughts, preferences, and choices by protecting the underlying neural functioning.
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.