Jurisprudence of the Mind

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by Sigal Samuel:

"Some neuroethicists argue that the potential for misuse of these technologies is so great that we need revamped human rights laws — a new “jurisprudence of the mind” — to protect us. The technologies have the potential to interfere with rights that are so basic that we may not even think of them as rights, like our ability to determine where our selves end and machines begin. Our current laws are not equipped to address this.

Several countries are already pondering how to handle “neurorights.” In Chile, two bills that would make brain data protection a human right will come before parliament for a vote in November, thanks in part to the advocacy of neuroscientist Rafael Yuste. In Europe, the OECD is expected this year to release a new set of principles for regulating the use of brain data.

One of the main people pushing for these new human rights is neuroethicist Marcello Ienca, a researcher at ETH Zurich, one of Europe’s top science and technology universities. In 2017, he released a paper outlining four specific rights for the neurotechnology age he believes we should enshrine in law. I reached out to ask what he thought of the recent revelations from Facebook and Neuralink.

“I’m very concerned about the commercialization of brain data in the consumer market,” he said. “And I’m not talking about a farfetched future. We already have consumer neurotech, with people trading their brain data for services from private companies.” He mentioned neurogaming, where you control your movements in a video game using your brain activity rather than a traditional controller, and self-tracking, where you use wearable devices to, say, monitor your sleep. “I’m tempted to call it neurocapitalism.”

BCI tech includes systems that “read” neural activity to decode what it’s already saying, often with the help of AI-processing software, and systems that “write” to the brain, giving it new inputs to actually change how it’s functioning. Some systems do both." (https://www.vox.com/platform/amp/2019/8/30/20835137/facebook-zuckerberg-elon-musk-brain-mind-reading-neuroethics?)

Typology (of Rights)

By Marcello Ienca, as reported by Sigal Samuel:

1. The right to cognitive liberty

"You should have the right to freely decide you want to use a given neurotechnology or to refuse it.

In China, the government is already mining data from some employees’ brains by having them wear caps that scan their brainwaves for depression, anxiety, rage, or fatigue. “If your employer wants you to wear an EEG headset to monitor your attention levels, that might qualify as a violation of the cognitive liberty principle,” Ienca said, because even if you’re told that wearing the device is optional, you’ll probably feel implicit pressure to do so since you don’t want to be at a competitive disadvantage.

He added that the US military is also looking into neurotechnologies to make soldiers more fit for duty. Down the line, that could include ways to make them less empathetic and more belligerent. Soldiers may be pressured to accept interventions.

“There is already military-funded research to see if we can monitor decreases in attention levels and concentration, with hybrid BCIs that can ‘read’ deficits in attention levels and ‘write’ to the brain to increase alertness through neuromodulation. There are DARPA-funded projects that attempt to do so,” Ienca said, referring to the Defense Department’s advanced research agency.

2. The right to mental privacy

You should have the right to seclude your brain data or to publicly share it.

Ienca emphasized that neurotechnology has huge implications for law enforcement and government surveillance. “If brain-reading devices have the ability to read the content of thoughts,” he said, “in the years to come governments will be interested in using this tech for interrogations and investigations.”

The right to remain silent and the principle against self-incrimination — enshrined in the US Constitution — could become meaningless in a world where the authorities are empowered to eavesdrop on your mental state without your consent.

It’s a scenario reminiscent of the sci-fi movie Minority Report, in which a special police unit called the PreCrime Division identifies and arrests murderers before they commit their crimes.

3. The right to mental integrity

You should have the right not to be harmed physically or psychologically by neurotechnology.

BCIs equipped with a “write” function can enable new forms of brainwashing, theoretically enabling all sorts of people to exert control over our minds: religious authorities who want to indoctrinate people, political regimes that want to quash dissent, terrorist groups seeking new recruits.

What’s more, devices like those being built by Facebook and Neuralink may be vulnerable to hacking. What happens if you’re using one of them and a malicious actor intercepts the Bluetooth signal, increasing or decreasing the voltage of the current that goes to your brain — thus making you more depressed, say, or more compliant?

Neuroethicists refer to that as brainjacking. “This is still hypothetical, but the possibility has been demonstrated in proof-of-concept studies,” Ienca said, adding, “A hack like this wouldn’t require that much technological sophistication.”

4. The right to psychological continuity

You should have the right to be protected from alterations to your sense of self that you did not authorize.

In one study, an epileptic woman who’d been given a BCI came to feel such a radical symbiosis with it that, she said, “It became me.” Then the company that implanted the device in her brain went bankrupt and she was forced to have it removed. She cried, saying, “I lost myself.”

Ienca said that’s an example of how psychological continuity can be disrupted not only by the imposition of a neurotechnology but also by its removal. “This is a scenario in which a company is basically owning our sense of self,” he said.

Another threat to psychological continuity comes from the nascent field of neuromarketing, where advertisers try to figure out how the brain makes purchasing decisions and how to nudge those decisions along. The nudges operate below the level of conscious awareness, so these noninvasive neural interventions can happen without us even knowing it. One day a neuromarketing company is testing a subliminal technique; the next, you might find yourself preferring product A over product B without quite being sure why.

Consumer advocate organizations have raised the alarm about neuromarketing. Jeff Chester, the executive director of the Center for Digital Democracy, has said that adult advertising should be regulated “if the advertising is now purposely designed to bypass those rational defenses” that formerly allowed us to discern what’s true and untrue." (https://www.vox.com/platform/amp/2019/8/30/20835137/facebook-zuckerberg-elon-musk-brain-mind-reading-neuroethics?)