Rapid advances in neuroscience and neurotechnology have opened up an unprecedented set of possibilities “for accessing, collecting, sharing and manipulating information from the human brain”, announced Roberto Andorno, professor at the University of Zurich (Switzerland), at the Interuniversity Congress on New Frontiers in Neuroethics, organized by the Bioethics Observatory of the Catholic University of Valencia (UCV). The seasoned Argentine legal expert does not share the “blind faith” in the technological developments of certain scientific and business sectors.
Working within the field of law, Andorno has spent years focusing on human dignity as a research topic, and as a member of international bodies that advise or regulate on matters of human rights and biomedicine. This dual role has allowed him to make realistic proposals in view of these developments that, in his opinion, pose “important challenges” that need to be addressed “to prevent unintended consequences”.
Two years ago, a research article he published with Professor Marcello Ienca of the Swiss Federal Institute of Technology on the legal problems arising from the advancement of neuroscience and neurotechnology generated considerable interest. Are democratic countries prepared at the legislative level to address the risks of exponential progress of both, especially as regards individual rights and freedoms?
They are not, but not only in terms of the laws of each nation; the current human rights framework is also inadequate. This is for the simple reason that the threat in this area arises from the possibilities opened by the interaction of the brain with devices. These chips implanted in our heads can ‘read’ the brain and thus collect brain data, with all that this implies in terms of privacy. Second, these devices can ‘write’, i.e., they can modulate, influence, and enhance our cognitive abilities.
It is the first time that we have been able to directly access the information in this organ and that we have the ability to modify the behaviour, personality, and identity of someone, in some way. Used with malicious intent, all that potential could be very dangerous. We are touching on freedom of thought, among other issues, and this is something that should concern us. That’s why in this article we propose the formulation of four new human rights to respond to these challenges. Associated with the basis of all of these rights is freedom of thought; in this case, we are referring to the right to cognitive liberty.
Although the reader may think they have a rough idea about that freedom, could you specify what it means? Terms are very important for legal experts.
(Smile) They are indeed! We’re talking about a general principle of these new rights that aims to protect a person’s capacity for self-determination. Cognitive liberty therefore refers to the right to continue exercising the extraordinary ability that is human thought, without it being conditioned or determined by third parties. An example of this would be a totalitarian state that appropriates these technologies to condition its citizens, avoid criticism, end any opposition, etc.
And so the issue presents quite frightening prospects, because what’s at stake now is not only the external manifestation of thought, but the internal forum itself. That’s why we believe that restatement of the law is needed at national and international levels. There will be new rights and others that will expand some of the existing ones, such as the right to privacy. In this case, that privacy will extend to mental data in particular.
In the article, you call it the “right to mental privacy”…
Yes. This is the one most immediately in danger because there is already a wide variety of devices to access our brain data from the medical and clinical area, but it can also be done by citizens themselves as consumers. Through technology, we can take a ‘selfie’ of the brain, measure our cognitive ability, our level of depression, our memory, etc.
There are already companies — I think one of them is Mercedes-Benz — that offer an electroencephalogram (EEG)-based device that monitors your ability to concentrate when you are driving and alerts you if you fall asleep or get distracted. In fact, in some factories in China, employees are already required to wear a device on their heads that monitors their concentration at work and their stress level, among other mental data. The head of the company receives this information in real time and can take action against anyone who is not concentrating sufficiently in the production chain, for example. And now they are also testing it with children at school. I think it’s an inhuman procedure because we are not robots. We have the right to be distracted.
Orwell’s Big Brother has arrived, hasn’t it?
The truth is there are a lot of devices that are collecting mental data, for clinical purposes or not, that can be hacked. I think we should require the companies that produce these devices to try to limit their use to specific purposes, to ‘anonymize’ the data, or to restrict access only to the person to whom they belong. It is a whole legal area that has not yet been developed and on which we must get to work.
If I understand you correctly, it is above all a question of banning uses and not so much banning technology
Yes. Broadly speaking, all interventions that fulfil a diagnostic or therapeutic function should be promoted. We could mention, for example, patients with locked-in syndrome, who suffer from complete paralysis and can only communicate with the outside world by moving their eyes. Thanks to scientific and technological advances, they can now begin to communicate with thought through brain-computer interface devices. They can escape from their prison, it’s a wonderful thing.
Artificial intelligence (AI) greatly enhances the current potential of neurotechnology. We should be able to limit the use of these advances to beneficial purposes only, but I wouldn’t say they should be banned. I have doubts about the use that could be made of ‘neuroenhancement’ techniques outside the clinical setting. They could generate issues of injustice at the social level, so-called neuro-discrimination.
What do you mean?
As with doping in sport, people who have access to these cognitive enhancement techniques would have an advantage over everyone else, from academic performance to employment, as well as other situations. We are referring, of course, to the misuse of devices; there are techniques outside the neurotechnology field that are intrinsically questionable, regardless of their application.
Technology is developing faster than we can analyse its consequences
Exactly. That’s why we have to think about it now and, given that science and technology are international, the response we give to these challenges must also be international. An international regulatory framework is needed in the face of scientific and technological progress. The right that arrives too late is always criticized. Well, now is the time to act in the common interest and to set limits, before they have to be imposed by practice, before we say there’s nothing we can do anymore.
With this in mind, you have already mentioned two of the four new human rights you consider essential: cognitive liberty and mental privacy. What would be the third?
The right to mental integrity, which does not refer so much to the protection of one’s mental data, but to prevent these devices from being used in such a way as to cause harm to the individual’s psychological dimension. Consider, for example, the deep brain stimulation device used to prevent involuntary body movements in people with Parkinson’s disease. This device has an external element connected to some electrodes; someone could hack it so that the electric shock is greater than expected and thus cause harm to the patient. This right would have more implications at the civil or criminal law level, and also in relation to compensation for damage.
It seems that some of these rights overlap a little
Although in practice they may overlap in certain cases, I think they can be distinguished from a conceptual perspective.
What would be the fourth new human right to create?
The right to psychological continuity, which would seek to protect the identity of the person over time, i.e., that each human being remains him- or herself, without external interference or brainwashing. Although it seems like science fiction, studies have already been conducted in animals that show the possibility of selectively erasing parts of the memory. This could alter someone’s personality, who they are. In a way, we are the product of our past, of our memories.
But as we said before with regard to uses, not everything is black and white. The use of this technology in patients who have gone through some traumatic experience could have a beneficial therapeutic effect, such as a woman who has been raped or a former soldier with post-traumatic stress syndrome. But we have to give this a lot of thought. For example, would it be ethical to erase part of a serial killer’s memory to try to neutralize that criminal tendency? Do we have the right to alter someone’s identity so much? We are stepping on quicksand. We have to analyze many small nuances and discern very well.
In addition to taking action from the legal sphere, perhaps it would be a good idea to prepare starting with the field of education; after all, the scientists and technologists of tomorrow are now sitting at their desks in universities. A few decades ago, all students in higher education studied philosophy at the beginning of their university years; they had a grounding in the humanities when they entered the working world, whatever their career. Given the panorama drawn by neurotechnology, perhaps it is time to recover the importance of the humanities, as the UCV does, for example. After all, what is it to be human without knowing our history, without great minds, without the arts?
We would be nothing without literature.
Indeed. Humanity is not measured only with numbers, with algorithms that determine our validity in terms of production or consumption. If we only work around values such as efficiency, utility, or ability, the future darkens, don’t you think?
What you say is fundamental. People must ask themselves who we are, what this world is, where we are going, we must ask ourselves about good and evil, etc. Philosophical reflection is at the heart of individual and social life. Art and literature are other forms of manifestation of these questions; sometimes, in fact, they can express them better than philosophy, which can be too abstract or difficult for many to understand. For instance, there is a novel that may be very helpful to produce scientists with ethics, a novel that was very influential in matters of reproduction, eugenics, etc.
Brave New World by Aldous Huxley?
Correct answer. This book greatly helps to understand the dangers posed by the advancement of modern science and technology. Some of the ones that Huxley predicted in the book already exist, by the way. He wrote it in 1932, he was a visionary. Cinema is also a good instrument to encourage reflection. In terms of genetics, for example, there is a particular film that I really liked…
That’s the one! I think it’s great and I always use it when I need to talk about ethics and genetics in college. Major issues emerge such as genetic discrimination, respect for the natural constitution of the human being, avoiding predetermination, and many others. Truly, we need to reassess the contribution of education in the humanities to better face the future.
Department of Communication
Catholic University of Valencia