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

Ienca 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 fact 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 it seems to me that of these two rights, the one that is most immediately threatened by modern neuroscience is the ‘read‘ right of mental privacy. 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?

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