“Neurotechnology” is an umbrella term for any technology that can read and transcribe mental states by decoding and modulating neural activity. This includes technologies like closed-loop deep brain stimulation that can both detect neural activity related to people’s moods and can suppress undesirable symptoms, like depression, through electrical stimulation.
Despite their evident usefulness in education, entertainment, work, and the military, neurotechnologies are largely unregulated. Now, as Chile redrafts its constitution — disassociating it from the Pinochet surveillance regime — legislators are using the opportunity to address the need for closer protection of people’s rights from the unknown threats posed by neurotechnology.
Although the technology is new, the challenge isn’t. Decades ago, similar international legislation was passed following the development of genetic technologies that made possible the collection and application of genetic data and the manipulation of the human genome. These included the Universal Declaration on the Human Genome and Human Rights in 1997 and the International Declaration on Human Genetic Data in 2003. The difference is that, this time, Chile is a leading light in the drafting of neuro-rights legislation.
In Chile, two bills — a constitutional reform bill, which is awaiting approval by the Chamber of Deputies, and a bill on neuro-protection — will establish neuro-rights for Chileans. These include the rights to personal identity, free will, mental privacy, equal access to cognitive enhancement technologies, and protection against algorithmic bias.
The Chilean neuro-protection bill includes an innovative interpretation of mental privacy (that is, the control over access to our neural data and to the information about our mental processes and states that can be obtained by analyzing it). Rather than describing it in broad-brush terms, it proposes to treat neural data as a special kind of information that is intimately related to who we are and that partly defines our identity. The bill therefore states that neural data must be legally considered as organic tissue.
By treating neuro-data as an organ, the law prohibits Chileans from being compelled to give up brain data and, crucially, its collection will require explicit “opt-in” authorization. Another implication of this legal analogy is that brain data cannot be sold; it can only be donated for altruistic purposes. The buying and selling of brain data is prohibited, regardless of consent.
Although the regulation of neurotechnological mind reading seems necessary to protect mental privacy, researchers like Gerben Meynen have argued that advancement of the field still faces “considerable obstacles and limitations for practical use,” and hence poses no substantial threat.
Even the most studied brain signals, such as those related to visual perception, are hard for scientists to understand, as they interact in complicated ways, responding not only to our natural and social environment but also to our bodily movements and internal metabolic processes.
However, if we wait for neurotechnology to be fully developed before deciding how to regulate it, the technical features and social practices associated with it may become too culturally entrenched to be easily modified.
Societies have already been forced to reckon with this problem, following the rise of powerful algorithms that are now able to obtain sensitive information about our psychological traits and states by analyzing our digital footprint, including social media posts, “likes,” and photos.
In the absence of regulation, this technology has blurred the line between private and public information, to the point that users have no control over what personal information about them can be digitally gathered. This may force governments to regulate only how this information is applied (e.g., preventing unethical manipulations of behavior), rather than how or whether it is collected at all.
Despite current limitations, there is reason to believe that we are on a steady path toward full-fledged neurotechnological mind reading. Research programs in Chile are already unraveling the mysteries of complex brain signals. For instance, perception used to be mostly studied in neuroscience as a passive process in which brain signals merely reacted to the environment. Now, Pedro Maldonado and his colleagues at the Laboratorio de Neurosistemas at the University of Chile are beginning to understand “active sensing” — the complex interactions between motor and sensory processing.
Even before getting to a point where we fully understand neural processing, we can already build neurotechnologies with practical applications and problematic implications.
Companies in Chile, Peru, Argentina, and Brazil are considering the use of SmartCaps, smart headwear baseball caps that monitor brain waves to measure fatigue and prevent workplace injuries. The device, developed by the Cooperative Research Centre for Mining Technology and Equipment (now Mining3), uses algorithms to calculate a worker’s fatigue levels. Workers in one Australian mine where this technology was already applied objected to their use because of concerns that information gathered will be used for disciplinary reasons.
Chile’s proposal will likely be the first of many national regulatory frameworks on neuro-rights. For instance, Spain’s recent Digital Rights Charter includes in Article 24 some of the same neuro-rights that Chile is proposing to ascend to a constitutional level.
Although there are good reasons to support the Chilean proposal, the law may end up being too restrictive. Our right to cognitive self-determination (also known as “cognitive liberty”) plausibly entails that we cannot only modulate our mental processes as we please but also that there should be no restriction to how we collect, analyze, and apply information about these processes — including the possibility of selling it.
The current discussion of the neuroprotection bill in Chile has taken this concern into consideration. Senate members have made suggestions regarding the original proposal, gravitating toward a softer reading of mental privacy, exclusively focused on the opt-in component of the organ transplant analogy.
A crucial step in moving toward an international consensus — one that could shield Chile from losing potential investors in “neuro-rights havens” with lax regulations — is a neuro-rights agenda for the United Nations. Rafael Yuste, co-director of Columbia University’s Neurotechnology Center, and international law attorney Jared Genser, who has taught as an adjunct professor of law at Georgetown University Law Center, suggested in March that U.N. Secretary-General António Guterres and U.N. High Commissioner for Human Rights Michelle Bachelet, Chile’s former president, create an International Science and Law Expert Commission on Neuro-rights. This commission could develop global consensus around the definition of neuro-rights, a step toward drafting a binding international treaty.
Crucially, Yuste and Genser suggest that the commission should accomplish these goals by holding regular consultations with countries that have advanced neuroprotection regulations. In effect, they are asking for the world to turn to countries like Chile. At the same time, Chile is keen to lead the international debate surrounding the regulation of mental privacy: the special nature of neural data, their current risks, and the reasonable projections regarding the future of neurotechnological mind reading.