Benjamin Bestgen

Humans are capable of fascinating feats of observation, empathy and intuition but we cannot read other people’s thoughts. Our thoughts are free and our mental life is strictly private, both the conscious and unconscious parts. That is changing.

Neuroimaging, EEG analysis, brain-to-computer interfaces and sophisticated artificial intelligence (AI) already enable researchers increasing successes in decoding people’s mental states, like whether a person is concentrating, tired, upset, distracted or attentively listening.

Technology learns to translate brainwaves into speech, reconstruct sentences you are thinking about or move machinery (e.g. a wheelchair or a robotic arm) by thought. People are asked to look at images and thanks to combining fMRI machines and AI, the computer can decode what the image that the person saw looked like.

It is important not to fall prey to sensationalist claims about the current possibilities of such technologies. Not many of us are familiar with the equipment, methodology and experimental conditions involved or bother to read the original papers published by the researchers themselves. For instance, “mind-reading” technology still requires either unwieldy devices to be worn by test-subjects and/or the implantation of electrocorticography units directly into the skull, as units outside the skull (e.g. EEG caps) are less accurate. The AI also has to be “trained” for the specific test-person it is trying to read, a complicated process of neural mapping and signal detection that takes time and mastery of the algorithms involved.

We also still don’t fully understand how the brain works. Neuroscientists know that the brain isn’t a computer and doesn’t work like one, but the “brain = computer” analogy has so much intuitive appeal for people that it perseveres. Elon Musk’s Neuralink project, while interesting, not only suffers from this misunderstanding but with its ca. 3,000 electrodes linked to a single processor, it pales against the human brain with over 80 billion neurons, each thought to be a kind of processor on its own.

Most emerging neurotechnologies are not yet market-ready, user-friendly or affordable. But many will be soon – depending on the tech, we are talking a few years, maybe decades but not centuries.

Where is the law in this?

Academic Oliver Goodenough and attorney Micaela Tucker noted already in 2010 that neuroscience studies the processes underlying human behaviour while law concerns itself with the regulation of human behaviour. The two disciplines should be natural partners.

The more we learn about how the brain works, the better we can address legal challenges around issues like responsibility, bias, evidence, addiction, reasonable judgement, juvenile offenders, mental health or actions and decision-making (from legislators and judges to corporate behaviour, employment tribunals, policing and all the way to criminals’ mens rea).

But we also require laws and regulations around neurotechnologies themselves. Medical and military uses aside, the civil and commercial implications of emerging neurotechnologies to analyse, interpret and influence people’s brains are far-reaching. Presently, legislators and law are ill-prepared.

New rights required

We already considered some legal challenges around cognitive enhancements but these were comparatively situation-specific.
Jurist Jan Christoph Bublitz proposed in 2013 what is known as the right to cognitive liberty or mental self-determination. It means “the right to alter one’s mental states with the help of neurotools as well as to refuse to do so”. (Bublitz 2013 p. 234).

Bublitz considers cognitive liberty to be a fundamental legal principle in all our regulations of neurotechnology: our mind, consciousness, the electrochemical processes and substrates in our brain constitute the very basis of all our other freedoms. This applies to all humans and some propose that cognitive liberty should be a universal human right.

This is because freedom of thought, speech, religion, choice or press depend on cognitive liberty as their ultimate basis. If our own minds and brains are not free from government, criminal or corporate interference, these other freedoms crumble automatically.

Cognitive liberty involves several related aspects:

• the right to make free, personal and unobstructed choices about our own mental states;
• the right to determine our own mental integrity free from government, criminal and corporate violation or interference; and
• the right to act in such ways as to take control of our own mental life, including whether and how to alter our mental state.

If more widely accepted as a fundamental legal principle, cognitive liberty could form the basis for future legislative approaches to emerging neurotechnologies. But bioethicists Marcello Ienca and Roberto Andorno (2017) consider that this right alone is not enough to address future challenges: they propose additional rights to (1) mental privacy, (2) mental integrity and (3) psychological continuity.

In my subsequent articles I will introduce these proposals.

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.