The right to cognitive freedom, the right to mental privacy, the right to mental integrity and the right to psychological continuity are the four new laws proposed by researchers to protect themselves from a future that will be dominated by neuroscience.
Dew human rights to prepare for advances in neurotechnology that endanger the freedom of the mind have been proposed in the journal Life Sciences, Society and Policy. The authors of the article suggest that four new laws may emerge in the near future: the right to cognitive freedom, the right to mental privacy, the right to mental integrity and the right to psychological continuity.
Marcello Lenca, senior author and doctoral student at the Institute for Biomedical Ethics at the University of Basel, says: " The mind is seen as the last refuge of personal freedom and self-determination, but advances in neural engineering, brain imaging and neurotechnology are threatening the freedom of the mind. Our proposed legislation would allow people to refuse coercive and invasive neurotechnology, protect the privacy of data collected by neurotechnology, and protect the physical and psychological aspects of the mind from damage caused by the misuse of neurotechnology. ".
Advances in neurotechnology such as brain imaging and the development of brain-computer interfaces have caused these technologies to move away from the medical world and increasingly towards the consumer and marketing realm. While these advances are beneficial for individuals and society, there is a risk that the technology may be misused and create unprecedented threats to personal freedom.
Professor Roberto Andorno, co-author of the research, explains: " For example, brain imaging technology has already reached a point where there is a discussion about its legitimacy in a criminal court as a tool for assessing criminal liability or even the risk of recidivism.. »
Already in 2014, President Obama had expressed concern about this and drew attention to the potential impact of neuroscience on human rights, stressing the need to address issues such as: "...the need to address the impact of neuroscience on human rights.... regarding privacy, moral responsibility for actions; questions about stigma and discrimination based on neurological measures of intelligence or other traits; and questions about the appropriate use of neuroscience in the criminal justice system ".
The Neurotechnical Revolution
For a long time, the limits of the skull were generally considered to be the dividing line between the observable and unobservable dimensions of the living human being. Indeed, although the primitive forms of neurosurgery used in ancient societies may have allowed for the observation and even manipulation of brain tissue, neural and mental processes, underlying emotions, reasoning and behaviour remained untouchable. However, modern advances in neuroscience and neuro-technology have gradually unlocked the human brain and made it possible to understand brain processes and their link to observable mental states and behaviours. In 1878, Richard Canton was the first to discover the transmission of electrical signals through the brain of an animal. Forty-six years later, the first human electroencephalography (EEG) was recorded. Since then, a neurotechnical revolution has taken place both inside and outside of clinics. In the 1990s, sometimes referred to as the "decade of the brain", the use of imaging techniques for neurobehavioural studies increased dramatically.
Today, there is a broad spectrum of neuroimaging technologies that have become available on the market. For example, the non-invasive recording and display of brain activity patterns (often associated with the performance of physical or cognitive tasks) has become common practice.
Another technique, such as functional magnetic resonance imaging (FMRI), allows the electrical activity of the brain to be measured indirectly, i.e., using hemodynamic responses (brain blood flow) as indirect markers. Current FMRI techniques can locate brain activity, graphically display brain activation patterns and determine their intensity by colour-coding the activation force. FMRI techniques are used for a variety of purposes, including pre-surgical risk assessment and functional mapping of brain areas to observe post-stroke or post-surgical recovery. In addition, a number of neurological conditions, including depression and Alzheimer's disease, can now be diagnosed with the use of FMRI.
The ability of neuroimaging techniques to map brain function has also been effectively tested to gain insight into people's intentions, views and attitudes. Brain scans not only "read" concrete intentions and memories related to the experience. They even seem to be able to decode more general preferences. An American study has shown that FMRI scans can be used to successfully infer the political views of users by identifying functional differences in the brains of Democrats and Republicans. Similarly, men's frequent preference for sports cars was correlated with specific functional differences in men's brains compared to women's brains.
The possibility of non-invasively identifying such mental correlates of brain functional differences is of particular interest for marketing purposes. More than a decade ago, researchers used FMRI to show functional differences in the brains of people who drink Coca-Cola versus the same people who drink unlabelled Coca-Cola. Their results showed that marketing strategies (e.g. Coca Cola labeling) can determine different responses in the brains of consumers. These results pioneered the establishment of a branch of neuroscience at the intersection of marketing research, neuromarketing, which has grown rapidly over the past decade.
Today, several multinational companies, including Google, Disney, CBS etc., use neuromarketing research services to measure consumer preferences and impressions of their advertisements or products. In addition, a number of neuromarketing companies, such as EmSense, Neurosence, MindLab International and Nielsen, systematically apply neuroimaging techniques, mainly FMRI and EEG, but also steady-state topography (SST) and measurements to study, analyse and predict consumer behaviour. This ability to extract the mind (or at least structural aspects of the mind at the information level) can potentially be used not only to infer mental preferences, but also to create, print or trigger these preferences.
Brain imaging techniques were first developed and are still widely used in clinical medicine and neuroscience research. In recent years, however, a number of neurotechnical applications have made their way into the marketplace and are now integrated into a number of consumer quality devices for healthy users with a variety of non-clinical purposes. The generic term usually used to encompass all of these non-invasive, evolving and potentially ubiquitous neurotechnologies is "pervasive neurotechnology" (Fernandez, Sriraman, Gurevitz and Ouiller 2015 ), a notion borrowed from the most widely used notion of pervasive computing. Today, ubiquitous neurotechnology applications include brain-computer interfaces (BCI) for machine control, real-time neuromonitoring or neurosensor-based vehicle operator systems.
The possibility of non-invasive brain control has attracted the attention of the mobile communications industry. Several leading companies, including Apple and Samsung, are incorporating neurogadgets into the accessories of their major products. For example, iPhone accessories such as XWave headphones already allow direct connection to compatible iPhones and the ability to read brain waves. Meanwhile, next-generation prototypes of Samsung Galaxy Tabs and other mobile or portable devices have been tested to be controlled by brain activity via EEG-based BCI. In light of these trends, researchers predict that neuroproducts will gradually replace the keyboard and touch screen.
Not only do neuroimaging devices and PCBs fit into the ubiquitous neurotechniques category, but several electrical brain stimulators also fit into this category. Unlike neuroimaging tools, neurostimulators are not primarily used to record or decode brain activity, but rather to stimulate or modulate brain activity electrically. Portable, easy-to-use, consumer-based transcranial direct current (TDCS) stimulation devices are the most common form of consumer-quality neurostimulators. They are used in a number of low-cost direct-to-consumer applications to optimize brain performance on a variety of cognitive tasks, depending on the region of the brain being stimulated.
In summary, if in the last few decades neurotechnology has unlocked the human brain and made it readable for scientists, the coming decades will see neurotechnology become ubiquitous and integrated in many aspects of our lives and increasingly effective in modulating the neural correlations of our psychology and behaviour.
While advocating for continued progress in the development of neurotechnology, the authors of the article argue that the ethical and legal implications of the neurotechnical revolution should be considered quickly and proactively. The authors call for "the legal system to be sufficiently prepared to meet the new challenges that may arise from the emerging neurotechnology, particularly in the context of human rights".
Neurosciences and Human Rights
Although neurotechnology has the potential to affect human rights such as privacy, freedom of thought, the right to mental integrity, freedom from discrimination, the right to a fair trial or the principle of self-incrimination, international human rights law makes no explicit reference to neuroscience. Unlike other biomedical developments, which have already been the subject of normative efforts at the national and international level, neuro-technology remains largely a "science of the mind". terra incognita for human rights. Nevertheless, the implications raised by neuroscience and neurotechnology for the inherent characteristics of human beings require a rapid and adaptive human rights response.
The adaptability of human rights legislation has already made it possible to respond to the challenges posed by genetic technology. This precedent may help to anticipate how this branch of law may evolve over the next few years in response to the new issues raised by the neurosciences. Indeed, since the end of the 1990s, the international community has made considerable efforts to resolve a wide variety of problems arising from the growing access to human genetic data. In 1997, the Universal Declaration on the Human Genome and Human Rights (UDHGHR) was adopted to prevent the collection and use of genetic information in a manner inconsistent with respect for human rights and to protect the human genome from inappropriate manipulations that could harm future generations.
The principles contained in this legislative arsenal were further developed in 2003 by the International Declaration on Human Genetic Data (IDHGD) which sets out more specific rules for the collection of human biological samples and genetic data. It is interesting to note that the interaction between genetics and human rights has led to entirely new rights, such as the "right not to know one's genetic information", formally recognized by the UDHGHR (Article 5(c)) and the IDHGD (Article 10), as well as by other international and national regulations. In addition to the recognition of new rights, the "old" rights - such as the right to privacy and the right to discrimination - were specifically adapted to the new challenges posed by genetics. This close link between the life sciences and human rights was reinforced by the 2005 Universal Declaration on Bioethics and Human Rights, which comprehensively addresses the relationship between the two fields. The latter document sets out principles that apply not only to genetics but to other biomedical and life science issues.
In their article, the authors argue that, like the historical trajectory of the "genetic revolution", the ongoing "neuro-revolution" will reshape some of our ethical and legal notions. In particular, they argue that the increasing sensitivity and availability of neuroprotection will require, in the coming years, the emergence of new rights or at least the development of traditional rights to specifically address the challenges posed by neuroscience and neurotechnology.
The authors of the article attempt to demonstrate that " individual willingness to exercise control over one's own neuro-cognitive dimension as well as the emergence of potential threats to basic human goods or interests posed by the misuse or misapplication of neurotechnical devices may require a reconceptualization of some traditional human rights or even the creation of new neuro-specific rights ".
The new rights advocated in this article - the right to cognitive freedom, the right to mental privacy, the right to mental integrity and the right to psychological continuity - meet these requirements.
The authors follow the lead of the American sociologist and bioethicist Paul Root Wolpe, who suggested that a red line be drawn around the use of mind-reading technologies: "The skull should be designated as an area of absolute intimacy. No one should be able to undermine an individual's mind against his or her will. We should not allow it even with a court order. We should not allow it for military or national security. We should not allow the use of technology in coercive circumstances, even if the use may serve the public good. ".
The volume and variety of neurotechnical applications is rapidly increasing both within and outside the clinical and research setting. The ubiquitous distribution of cheaper, scalable and easy-to-use neurological applications has the potential to open up unprecedented opportunities at the brain-machine interface and to make neurotechnology intrinsically integrated into our daily lives. The normative ground should therefore be urgently prepared to prevent misuse or unintended negative consequences. Moreover, given the fundamental nature of the neurocognitive dimension, the authors call for this normative response to focus not only on tort law but also on fundamental human rights issues. This will require either a reconceptualization of existing human rights or even the creation of new rights specific to the neurosciences.
In this respect, the emerging collateral risks such as malicious brain hacking must be stressed. Marcello Lenca warns: " Science fiction can tell us a lot about the potential threat of this technology. The neurology presented in some famous novels is already a reality while other technologies are closer or exist as military and commercial prototypes. ".