Benjamin Bestgen: Neurolaw – mental integrity and psychological continuity



Benjamin Bestgen

In his latest jurisprudential primer, the third on neurolaw, Benjamin Bestgen details more technologies on the horizon which the law will have to get to grips with, including ‘brainhacking’ and ‘memory engineering’.

In the “Morty’s Mindblowers” episode of the cartoon series Rick and Morty, viewers first encounter a device Rick (described by friends and foes as the smartest being in the universe) has constructed to capture and extract distinct memories from a person’s mind (in this case from Morty’s, his dim-witted grandson). Rick collects these memories to replay them for entertainment. In a later episode (“Claw and Hoarder”), he uses the device again to remove a particularly disturbing memory from his son-in-law Jerry’s mind but does so against Jerry’s will.

Likewise, the agents from the Men in Black franchise use their Neuralyzer device to make people forget any interactions with the MIB or alien presences encountered. Erased memories get supplanted with trivial narratives, including unsolicited life-coaching advice from Agent J if he thinks the person they neuralized could benefit from his input on self-care, fashion or interior design. As a rookie, J once enquired if repeated use of the Neuralyzer causes harm to the people MIB ‘neuralises’, but his supervisor seems unsure and doesn’t care.

Mental integrity and psychological continuity

In the previous Neurolaw articles (part one, part two), we noted some existing and developing technologies which could violate a person’s mental privacy. But technology that can access a person’s mind can also potentially alter it. Altering somebody’s mind may be done for beneficial or nefarious purposes. Even well-meaning interventions could carry a risk of harmful side-effects. They could threaten a person’s mental integrity.

Additionally, technology could also alter a person’s neural functioning itself, so it changes their identity. Our perception of “who I am as a persisting being through time” is called psychological continuity.

Mental integrity and psychological continuity overlap somewhat but the former is primarily concerned with direct harm to the mental integrity of a person while the latter addresses a person’s core identity, irrespective of any harm.

Technology

Potential threats to mental integrity and/or psychological continuity arise from (examples only):

  • “Brainhacking”, where a person’s brain-to-computer interface is maliciously accessed to alter electric signals the victim’s brain receives from their device to neurologically control prosthetics or machinery (civilian and military applications);
  • Transcranial Magnetic Stimulation (TMS) can be used to enhance or suppress electrical traffic in selected brain areas;
  • Deep-brain stimulation (DBS), while still experimental, manipulates electrical signals in a person’s neural processing through electrodes implanted surgically into the brain;
  • Memory engineering makes progress in erasing or boosting memories in a person’s mind by selectively strengthening or weakening synaptic connections with optical lasers – this technology could become useful for treating PTSD or dementia-type illnesses but the potential for criminal or military misuse (brain-washing) could be considerable.

TMS demonstrated, medical uses aside, that it can assist in temporarily modulating a person’s political or religious beliefs: by enhancing or shutting down certain brain areas, subjects became more open to criticism of their country and showed increased belief in an afterlife.

DBS shows promise in the treatment of complex neurological disorders but researchers also reported feelings of self-alienation and changes in impulsivity, aggression and sexual behaviour in some individuals after treatment.

And not all neurotechnology requires invasive equipment: various smartphone apps, sugar, tobacco or gambling/gaming already play on our brain chemistry to get us hooked. Political parties, aided by media pundits, generate and exploit fears and prejudices for votes. Neuromarketers can go further by subtly modulating our preferences and attitudes so that we will seek out the hook more often and more reliably, while falsely believing we are still making an informed and conscious decision.

The Law

Article 3(1) of the EU Charter of fundamental rights enshrines “respect” for the mental and physical integrity of a person as a legal principle. Particular emphasis lies on the biological and medical fields: Article 3(2) prohibits eugenics, reproductive cloning and the commercialisation of the human body or its parts. It also grants a right to free and informed consent.

Articles 22 and 29 of the Universal Declaration of Human Rights expressly note that the free and full development of one’s personality is a fundamental right every state should foster and protect.

But given the age of these statutes, they are silent on neurotechnology.

Bioethicists Ienca and Andorno (2017) note the rapid increase of neurotechnology in our digital environments and infospheres. Existing laws around mental and physical health should be updated to address actual and potential threats to persons’ brains and neural computation.

They propose that legal rights protecting mental integrity and psychological continuity from unconsented and harmful interference should be adopted by states worldwide.

The Future

Neurotechnologies challenge our understanding of what it means to be human. They can alter our preferences and perceptions, memories, attitudes. They impact our political and judicial systems, the way we do commerce, learn, compete in sports, educate ourselves, raise our children. They affect our very core: our neural networks, our brain chemistry.

They pose questions, for instance if rights to mental integrity and psychological continuity should be absolute or relative. Philosopher Julian Savulescu argues for obligatory moral enhancement to improve the minds and behaviour of violent offenders, if such biomedical technologies are safe and effective. Others disagree.

In times of hype, hysterics and kneejerk reactions, nuanced, considered public debate of neurotechnology with all its benefits and risks is all the more important. It should be worth our time.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.



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