Neurotech, neuroethics and brain data in context: Are “neurorights” the way to mental privacy?

Neu­rotech­nolo­gies – devices that inter­act direct­ly with the brain or ner­vous sys­tem – were once dis­missed as the stuff of sci­ence fic­tion. Not anymore.

Sev­er­al com­pa­nies are try­ing to devel­op brain-com­put­er inter­faces, or BCIs, in hopes of help­ing patients with severe paral­y­sis or oth­er neu­ro­log­i­cal dis­or­ders. Entre­pre­neur Elon Musk’s com­pa­ny Neu­ralink, for exam­ple, recent­ly received Food and Drug Admin­is­tra­tion approval to begin human test­ing for a tiny brain implant that can com­mu­ni­cate with com­put­ers. There are also less inva­sive neu­rotech­nolo­gies, like EEG head­sets that sense elec­tri­cal activ­i­ty inside the wearer’s brain, cov­er­ing a wide range of appli­ca­tions from enter­tain­ment and well­ness to edu­ca­tion and the workplace.

Neu­rotech­nol­o­gy research and patents have soared at least twen­ty­fold over the past two decades, accord­ing to a Unit­ed Nations report, and devices are get­ting more pow­er­ful. New­er BCIs, for exam­ple, have the poten­tial to col­lect brain and ner­vous sys­tem data more direct­ly, with high­er res­o­lu­tion, in greater amounts, and in more per­va­sive ways.

How­ev­er, these improve­ments have also raised con­cerns about men­tal pri­va­cy and human auton­o­my – ques­tions I think about in my research on the eth­i­cal and social impli­ca­tions of brain sci­ence and neur­al engi­neer­ing. Who owns the gen­er­at­ed data, and who should get access? Could this type of device threat­en indi­vid­u­als’ abil­i­ty to make inde­pen­dent decisions?

In July 2023, the U.N. agency for sci­ence and cul­ture held a con­fer­ence on the ethics of neu­rotech­nol­o­gy, call­ing for a frame­work to pro­tect human rights. Some crit­ics have even argued that soci­eties should rec­og­nize a new cat­e­go­ry of human rights, “neu­ror­ights.” In 2021, Chile became the first coun­try whose con­sti­tu­tion address­es con­cerns about neurotechnology.

Advances in neu­rotech­nol­o­gy do raise impor­tant pri­va­cy con­cerns. How­ev­er, I believe these debates can over­look more fun­da­men­tal threats to privacy.

A glimpse inside

Con­cerns about neu­rotech­nol­o­gy and pri­va­cy focus on the idea that an observ­er can “read” a person’s thoughts and feel­ings just from record­ings of their brain activity.

It is true that some neu­rotech­nolo­gies can record brain activ­i­ty with great speci­fici­ty: for exam­ple, devel­op­ments on high-den­si­ty elec­trode arrays that allow for high-res­o­lu­tion record­ing from mul­ti­ple parts of the brain.

Researchers can make infer­ences about men­tal phe­nom­e­na and inter­pret behav­ior based on this kind of infor­ma­tion. How­ev­er, “read­ing” the record­ed brain activ­i­ty is not straight­for­ward. Data has already gone through fil­ters and algo­rithms before the human eye gets the output.

Giv­en these com­plex­i­ties, my col­league Daniel Suss­er and I wrote a recent arti­cle in the Amer­i­can Jour­nal of Bioethics – Neu­ro­science ask­ing whether some wor­ries around men­tal pri­va­cy might be misplaced.

While neu­rotech­nolo­gies do raise sig­nif­i­cant pri­va­cy con­cerns, we argue that the risks are sim­i­lar to those for more famil­iar data-col­lec­tion tech­nolo­gies, such as every­day online sur­veil­lance: the kind most peo­ple expe­ri­ence through inter­net browsers and adver­tis­ing, or wear­able devices. Even brows­er his­to­ries on per­son­al com­put­ers are capa­ble of reveal­ing high­ly sen­si­tive information.

It is also worth remem­ber­ing that a key aspect of being human has always been infer­ring oth­er people’s behav­iors, thoughts and feel­ings. Brain activ­i­ty alone does not tell the full sto­ry; oth­er behav­ioral or phys­i­o­log­i­cal mea­sures are also need­ed to reveal this type of infor­ma­tion, as well as social con­text. A cer­tain surge in brain activ­i­ty might indi­cate either fear or excite­ment, for example.

How­ev­er, that is not to say there’s no cause for con­cern. Researchers are explor­ing new direc­tions in which mul­ti­ple sen­sors – such as head­bands, wrist sen­sors and room sen­sors – can be used to cap­ture mul­ti­ple kinds of behav­ioral and envi­ron­men­tal data. Arti­fi­cial intel­li­gence could be used to com­bine that data into more pow­er­ful interpretations.

Think for yourself?

Anoth­er thought-pro­vok­ing debate around neu­rotech­nol­o­gy deals with cog­ni­tive lib­er­ty. Accord­ing to the Cen­ter for Cog­ni­tive Lib­er­ty & Ethics, found­ed in 1999, the term refers to “the right of each indi­vid­ual to think inde­pen­dent­ly and autonomous­ly, to use the full pow­er of his or her mind, and to engage in mul­ti­ple modes of thought.”

More recent­ly, oth­er researchers have resur­faced the idea, such as in legal schol­ar Nita Farahany’s book “The Bat­tle for Your Brain.” Pro­po­nents of cog­ni­tive lib­er­ty argue broad­ly for the need to pro­tect indi­vid­u­als from hav­ing their men­tal process­es manip­u­lat­ed or mon­i­tored with­out their con­sent. They argue that greater reg­u­la­tion of neu­rotech­nol­o­gy may be required to pro­tect indi­vid­u­als’ free­dom to deter­mine their own inner thoughts and to con­trol their own men­tal functions.

These are impor­tant free­doms, and there are cer­tain­ly spe­cif­ic fea­tures – like those of nov­el BCI neu­rotech­nol­o­gy and non­med­ical neu­rotech­nol­o­gy appli­ca­tions – that prompt­ed impor­tant ques­tions. Yet I would argue that the way cog­ni­tive free­dom is dis­cussed in these debates sees each indi­vid­ual per­son as an iso­lat­ed, inde­pen­dent agent, neglect­ing the rela­tion­al aspects of who we are and how we think.

Thoughts do not sim­ply spring out of noth­ing in someone’s head. For exam­ple, part of my men­tal process as I write this arti­cle is rec­ol­lect­ing and reflect­ing on research from col­leagues. I’m also reflect­ing on my own expe­ri­ences: the many ways that who I am today is the com­bi­na­tion of my upbring­ing, the soci­ety I grew up in, the schools I attend­ed. Even the ads my web brows­er push­es on me can shape my thoughts.

How much are our thoughts unique­ly ours? How much are my men­tal process­es already being manip­u­lat­ed by oth­er influ­ences? And keep­ing that in mind, how should soci­eties pro­tect pri­va­cy and freedom?

I believe that acknowl­edg­ing the extent to which our thoughts are already shaped and mon­i­tored by many dif­fer­ent forces can help set pri­or­i­ties as neu­rotech­nolo­gies and AI become more com­mon. Look­ing beyond nov­el tech­nol­o­gy to strength­en cur­rent pri­va­cy laws may give a more holis­tic view of the many threats to pri­va­cy, and what free­doms need defending.

– Lau­ra Y. Cabr­era is an Asso­ciate Pro­fes­sor of Neu­roethics at Penn State, with inter­ests focused on the eth­i­cal and soci­etal impli­ca­tions of neu­rotech­nol­o­gy and neu­ro­sci­en­tif­ic advances. This arti­cle was orig­i­nal­ly pub­lished on The Con­ver­sa­tion.

To Learn More:

Brain Data in Con­text: Are New Rights the Way to Men­tal and Brain Pri­va­cy? (AJOB Neu­ro­science). From the Abstract:

• The poten­tial to col­lect brain data more direct­ly, with high­er res­o­lu­tion, and in greater amounts has height­ened wor­ries about men­tal and brain pri­va­cy … To bet­ter under­stand the pri­va­cy stakes of brain data, we sug­gest the use of a con­cep­tu­al frame­work from infor­ma­tion ethics, Helen Nissenbaum’s “con­tex­tu­al integri­ty” the­o­ry. To illus­trate the impor­tance of con­text, we exam­ine neu­rotech­nolo­gies and the infor­ma­tion flows they pro­duce in three famil­iar contexts—healthcare and med­ical research, crim­i­nal jus­tice, and con­sumer mar­ket­ing. We argue that by empha­siz­ing what is dis­tinct about brain pri­va­cy issues, rather than what they share with oth­er data pri­va­cy con­cerns, risks weak­en­ing broad­er efforts to enact more robust pri­va­cy law and policy.

News in Context:

• Stud­ies iden­ti­fy key eth­i­cal con­cerns raised by inva­sive and non-inva­sive neurotechnologies
• Empow­er­ing 8 Bil­lion Minds via Eth­i­cal Devel­op­ment and Adop­tion of Neurotechnologies
• We need to rethink neu­ro­science. And you can help us