The senators are currently examining the bioethics bill, a text voted in first reading by the National Assembly in October 2019. This bill brings new elements to the supervision of research in several innovative fields of biomedicine, including the rapidly expanding field of neurotechnology.
Article 12 in particular states that :
"Techniques for recording brain activity may only be used for medical or scientific research purposes or in the context of forensic investigations, to the exclusion, in this context, of functional brain imaging. »
It should be noted that compared to the previous section of the 2011 Act (article 16-14 of the civil code) specifically regulating the use of brain imaging techniques, the scope of the new Article 12 is extended to all techniques for recording brain activity. In addition, it is supplemented by Article 13 which "confers on the Minister responsible for health the power to prohibit, after obtaining the opinion of the High Authority for Health, any neuromodulation device that would present a serious danger or a suspicion of serious danger to human health". The term neuromodulation refers to new electrical or magnetic stimulation devices capable of modifying brain activity in patients and healthy people.
Increased ethical vigilance is indeed required in the face of the spectacular development of brain manipulation technologies which now go beyond the framework of medicine with commercial applications for the healthy population.
Neurotechnology: for better or for worse?
A huge step forward in our knowledge of the brain has been made thanks to MRI brain imaging techniques that have revealed the extraordinary plasticity properties of the human brain. In the course of learning and experimentation, we can see changes in the structure and function of the brain. Nothing is ever frozen in our brains at any stage of life. Connections are constantly being reorganized in time and space, according to our own history.
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The discovery of brain plasticity has paved the way for the possibility of acting directly on the brain to repair it, using technological tools to create new neuron circuits that will take over the failed circuits. For example, in Parkinson's disease, the implantation of electrodes inside the brain is effective in fighting tremors and improving patient quality of life. In paralyzed people, there are microprocessors record brain wavesThis allows them to control an exoskeleton or cursor on a computer screen, allowing them to interact with the outside world. Other techniques use electrical or magnetic stimulation on the surface of the skull. These procedures, which have the advantage of being non-invasive, are promising in neurological and psychiatric disorders for which pharmacological treatments are little or not effective: hallucinations, major depression, intractable pain.
While neurotechnologies have been shown to be effective in alleviating deficits in sensory and motor functions, their use for the improvement of cognitive disorders, as in Alzheimer's disease, is a distant prospect given the complexity of mental functioning. In the current state of research on the compensation of cognitive deficits, the results published in scientific journals are inconclusive and remain preliminary.
Many questions remain unanswered about the use of neurotechnologies. What consequences can they have on the functioning of the brain in the long term? As soon as you touch the brain with implants and electrical or magnetic stimulation, even through the skull, there is a significant risk of causing epileptic currents that can damage neurons. Stimulations can also alter the normal functioning of the brain, its plasticity capacities, and impair the patient's autonomy by interfering with his thoughts, emotions and free will. We are far from having the necessary hindsight to evaluate the benefits in relation to the risks of undesirable side effects, not only in the therapeutic context and even less so in the use of neurotechnologies in healthy people.
The promise of neurotechnology: for whom? for what?
Moving from repairing to increasing brain function is not self-evident, contrary to the rhetoric of the digital giants (GAFAM: Google, Amazon, Facebook, Apple and Microsoft) who advocate the benefits of neurotechnologies to control our brains, overcome mental illness and boost intellectual capacity.
Raymond KurzweilTheorist of transhumanism and director of engineering at Google said in 2016:
"We will use intracerebral nanobots connected to our neurons to connect to the Internet around 2035.... We will be able to transfer our memory and consciousness into microprocessors as early as 2045. »
GAFAM is investing millions of dollars in neurotechnology, not only to develop brain wave sensors for medical purposes but also to develop applications for the general public, with the corollary of new infrastructures for cloud to store brain data and cross-reference it with other personal data that they will exploit. This is already the case in the United States, where Google manages the health data of millions of individuals through a partnership with Ascension, the second largest healthcare network in the US. In France, the government has issued the trust Microsoft the collection of data from hospitals, pharmacies, medical records, research centres, raising concerns among health professionals about the risks of entering into agreements with the private sector when the public sector has jurisdiction.
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A potentially very lucrative field of application for neurotechnology is that of wellness therapies. Start-ups are developing helmets equipped with electrodes to record the electroencephalogram and allow the user to control his or her brain activity to regulate anxiety states, sleep cycles and moods. There are also helmets designed to capture positive emotions for tasting wines, gourmet food, choosing a perfume, etc. These devices are available over the Internet (starting at $300), although no validation of their effectiveness has been made using rigorous scientific methods. In France, the marketing of these helmets is not authorized. But for how much longer?
It should be noted that these technologies for recording brain waves with electrodes placed on the skull are nothing new. It has been known for over 50 years that alpha frequency waves are associated with relaxation and beta waves with alertness. What is new is the possibility of processing this data in real time through smartphone applications. Each type of brain wave is translated into sound or visual signals that inform the user about his mental states to help him regulate them, control his concentration, manage his stress or sleep. No more need for yoga! The mobile communication industry has made no mistake about it. Apple and Samsung are already incorporating neurogadgets into their new smartphones to read brain activity.
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Beyond the uses of health and personal well-being, other applications of neurotechnologies aim to monitor mental states in daily life to control them in case of failure.
Many car brands offer different technologies to detect fatigue through sensors of steering wheel movements, head position and also eye position. The system Eye trak allows the analysis of nystagmus (movement of the eyeballs to scan the visual field) which is an indication of the driver's state of alertness. It is expected that in the near future these detection systems will be complemented by brain wave sensors and generalised to all types of transport.
In china, brain surveillance permeates daily life, school and work. This is the case at a primary school near Shanghai where students are equipped with headphones to detect their attention in class (https://www.youtube.com/watch ?v=JMLsHI8aV0g). The data is sent directly to the teacher to identify undisciplined students and also to parents concerned about their children's success. At a factory in Hangzhou, the 40,000 workers wear helmets equipped with sensors to detect brain waves associated with emotional states that disrupt concentration. The company's profits would have increased significantly by reassigning distracted or stressed individuals to other positions in the production chain. In the absence of regulation, employers can only be encouraged to use neurotechnologies to increase their profits, especially since workers are usually in too weak a position to say no. We have gone a step beyond simple surveillance cameras. The Chinese are ushering in a world of generalized brain control.
The protection of brain data: a major bioethics issue
The development of neurotechnologies calls for specific ethical vigilance with regard to the risk of harming the psychological integrity of individuals and hindering freedom of thought. This particular risk of manipulation of the human person remains largely ignored at the legal level. In 2017, researchers at the Institute for Biomedical Ethics at the University of Basel called for the formulation of laws that establish new human rights to to protect "mental privacy and freedom of the mind." to meet the challenges posed by neuroscience and neurotechnology.
This topic is at the forefront of recommendations published in 2019 by the OECD (International Organization for Economic Cooperation and Development) to help public authorities and companies respond to the ethical, legal and societal issues raised by new neurotechnologies. Another major concern is the exploitation without informed consent of brain data collected in medical settings, privacy or population surveillance. Brain data are an integral part of personal data and must be protected against the risk of being used by digital companies, advertisers, insurance companies or the police.
It is in this context that Articles 12 and 13 of the draft law on bioethics come under this heading, which defines the conditions of use not only of MRI techniques but also of all the techniques for recording brain activities on which the present and future developments in neurotechnology are based. The bill anticipates possible abuses in the use of brain data by limiting their use to the medical field and scientific research. When the challenge is to respect human rights and preserve autonomy and freedom of thought, a legal framework is needed, following the example of international legislation, to protect the human genome against manipulations that could harm future generations.