Brain-Computer Interfaces and the Right to Cognitive Liberty

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By: Deepak George

In 2016 Dennis Degray, a quadriplegic for over a decade, sent a text message from a human brain. This monumental and groundbreaking feat was accomplished by using BrainGate’s Utah array device, which contains tiny electrodes that read and write neural signals and is surgically implanted into the patient’s motor cortex. While the technology has restored neural functionality in people suffering from paralysis, limb loss, or neurodegenerative disease, the implants are invasive, deteriorate over time, and barely brush the vast potential of brain-computer interfaces. Enter Facebook and the rest of Silicon Valley. Mark Zuckerberg described the new frontier in 2017: “Our brains produce enough data to stream 4 HD movies every second. The problem is that the best way we have to get information out into the world—speech—can only transmit about the same amount of data as a 1980s modem. We’re working on a system that will let you type straight from your brain about 5x faster than you can type on your phone today. Eventually, we want to turn it into a wearable technology that can be manufactured at scale. Even a simple yes/no ‘brain click’ would help make things like augmented reality feel much more natural.”

Facebook’s team has already built an algorithm that can decode brain activity and translate it into text in real time at an accuracy rate of 61 percent. Just this September, they agreed to acquire CTRL Labs, who have developed wristbands to translate neural signals to digital signals that can be understood by devices. Facebook is not the only company to express interest in this space. Elon Musk’s secretive Neuralink is building technology for humans to “achieve a symbiosis with artificial intelligence,” and overcomes the pitfalls of BrainGate’s device by using flexible, rather than stiff, electrodes that adapt to the brain’s physiology. The United States military just admitted to developing brain-computer interfaces so that humans can control “swarms of drones, operating at the speed of thought rather than through mechanical devices.”

Brain-computer interfaces are no longer dystopian science fiction and their advent will no doubt shatter traditional definitions of established freedoms. Indeed, in 2013, even President Obama listed some of the existing legal issues in advancing neuroscience such as privacy, personal agency, moral responsibility for one’s actions, discrimination based on neurological measures of intelligence, and use in criminal justice. In a paper that received global attention, neuroethicist Marcello Ienca outlined four specific rights that must be enshrined in law to cope with the flood of arising issues: the right to cognitive liberty, the right to mental privacy, the right to mental integrity, and the right to psychological continuity. The first right, the right to cognitive liberty, is described by Ienca as the “first, essential step,” emphasizing that humans should have the right to freely decide whether to use neurotechnology.

The right to cognitive liberty arguably grounds all other fundamental rights, especially in the context of the First Amendment. Without the freedom to control one’s thought processes, there is no freedom of choice, speech, association, press, or religion. The U.S. Supreme Court could have recognized this right when deciding right-to-refuse-treatment cases. In Sell v. United States, the state tried to compel a criminal defendant into taking antipsychotic medication after failing a competency evaluation to stand trial. The Court, ruling on substantive due process grounds, held that the Government can administer antipsychotic drugs to a mentally ill defendant if the treatment is medically appropriate, substantially unlikely to have detrimental side effects, and is necessary to further important government interests at trial.

The Court’s holding is very narrow. The due process protections seem to only apply to medications for criminal trial and still gave the government ample wiggle room to justify their policies. However, the petitioner Sell asked the court to rule on a broader First Amendment basis. The Center for Cognitive Liberty and Ethics (CLLE) wrote in an amicus brief, “Dr. Sell has an interest in his own thought process that is separate and distinct from his right to communicate those thoughts to others. The government’s efforts are directed to changing the manner in which Dr. Sell thinks. The restriction is pre-content. As this Court has found: ‘First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that permissible end.’” It is likely that brain-computer interfaces will initially interact with the civil justice system to admit evidence that could not be previously attained (e.g. witnesses in vegetative states), and such intrusions could and should be challenged on the same First Amendment grounds advanced by the CLLE. If the law fails to recognize the right to cognitive liberty, the U.S. could follow in the Chinese government’s footsteps, where employees are coerced to wear caps that scan brainwaves to monitor attention levels.

On September 26, 2006, Facebook opened its website to everyone aged 13 and older with a valid e-mail address. Years later, governments still struggle to protect the rights of consumers based on the legal issues that social media poses. If there are similar deficient safeguards around our own brains, the consequences will be devastating. Neuroethicist Marcello Ienca warns, “Brain data is the ultimate refuge of privacy. When that goes, everything goes.”

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