Neuroethics

Your Naked Brain: Preserving Privacy and Safety in the Rise of Neuroimaging

Laura Cho


Introduction

  In recent years, the leather briefcases of lawyers have filled with glossy images of brains and freshly inked papers that explain only a fraction of the worlds contained in the photos. With the advent of accurate and comprehensive electroencephalography (EEG) and functional magnetic resonance imaging (fMRI), neuroscientists are better equipped to uncover the brain’s secrets and push the boundaries of human knowledge of the infinite mind. This has shed light on applications of neuroscientific evidence in the law, allowing us to examine the psyche of criminals and attribute unlawful behavior to abnormalities in the brain. However, the rapidly growing power of advanced neuroimaging raises specific ethical questions about the intrusion of the mind that would likely not have been predicted by the writers of the legal system and human rights declarations. Neuroimaging, if used in an unchecked fashion (especially in the courtroom, where such evidence contributes to an ultimate verdict), threatens to infringe on the right to privacy. However, in the case that the individual in question strongly demonstrates a serious threat to society, the law should recognize and address these contingencies and clearly define when more intrusive neuroimaging capabilities are permitted. Thus, more laws specifically addressing neuroimaging need to be written—laws that protect the right of privacy of the psyche while also upholding the safety and security that society is entitled to.
 

Neuroimaging in the Courtroom

EEGs and MRI scans allow experts to study the structure and function of the human brain and “better conceptualize the connection between the human brain and human behavior” [2]. In the context of law, brain scans can support an insanity defense by referring to peculiarities apparent in the images that may have contributed to particular criminal behavior. For example, in People v. Weinstein (1992), a PET scan was used to argue that an arachnoid cyst in the brain would have rendered Weinstein, the defendant, mentally incapable of being criminally accountable for murdering his wife [2]. Neuroimaging can also be used to “read minds” by revealing neural and physiological reactions to information presented to a subject [3]; polygraph tests may be administered to determine whether a suspect recognizes critical information about a case or the truthfulness of his or her account [4]. Although not completely reliable, it still raises critical questions; not about how far future applications of innovative neurotechnology could go, but rather how far it should go. Records of the internal brain and its processes, in complete detail, could be considered a violation of one’s right to keep one’s thoughts exclusively to the self. A transgression such as this disregards the dignity and inherent value of the individual.

 

Current Laws for the Regulation of Neuroimaging

Currently, very few regulatory laws apply specifically to neuroimaging. Article 12 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation” [5]. It naturally seems to follow that if one has the right to privacy of the home, the individual should certainly be entitled to the confidentiality of his/her body, which includes the mind. The current laws do not address the mind specifically, simply because the ability of humans to perform “arbitrary interference” on the minds of other people was not thought possible at the time of designing the legal system. The 4th amendment of the US Constitution operates on the same principle as Article 12, stating, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” [6]. This amendment does refer to people’s right to be “secure in their persons”, meaning that people’s bodies cannot be subjected to unwarranted search, but it does not clearly define the extent to which neuroimaging can be used without infringing on privacy. Ultimately, more success in adhering to human rights laws may be found if the legal system addresses the mind explicitly as a private domain and clearly defines the extent to which the government may intervene; this can manifest through legislation that restricts specific neuroimaging techniques or prohibits entry into certain areas or aspects of the mind.

 

Neuroimaging and the Right to Security

Nevertheless, some criminal cases involve individuals that may pose a severe threat to public security. The preservation of society’s welfare involves “estimating the level of danger an individual poses to society” [3], in which neuroimaging may be needed to scan for peculiarities in the brain that are scientifically known to potentially contribute to dangerous behaviors. This allows the court to design the best course of action to protect both innocent individuals and the accused. The right to safety is as important, if possibly not more important, than the right to privacy, in which new laws must be balanced to preserve both. Again, because the framers of the current legal system could not have anticipated the capability to look into the brain, the government should create new regulations to clearly define the types of situations in which the law permits for more detailed and intrusive neuroimaging uses, accounting for the amount of potential danger from an individual, the mental state of the individual, informed consent from the individual, and such.

 

Conclusion

The potential ethical risks posed by advanced neuroimaging obligates the government to write new laws, or at least revise the current ones, to clearly define the private domain of the mind and utilize this idea to design constraints of neuroimaging that safeguard humanity’s right to privacy, while still upholding an entitlement to safety. If the government exists to protect the individual’s rights, and neuroimaging potentially threatens the rights of privacy and security of the individual, then the government must create laws that appropriately constrain neuroimaging to the extent that it preserves both. With the proper consideration and understanding of the defendant’s mental state, the potential impact of this mental state on others, and the capabilities of imaging tools that could potentially analyze the affected brain, this is possible. Although advancements in brain-scanning mark the groundbreaking scientific achievements of humanity, it may mean nothing if it threatens the lives and dignity of those it is intended to benefit.


References


  1. Mehta, Aalok. (26/02/2014). Brain Scans: Technologies That Peer Inside Your Head. BrainFacts. https://www.brainfacts.org/in-the-lab/tools-and-techniques/2014/brain-scans-technologies-that-peer-inside-your-head. Retrieved: 17/07/2020.

  2. Aono, Darby et al. (22/10/2019). Neuroscientific evidence in the courtroom: a review. SpringerOpen. https://cognitiveresearchjournal.springeropen.com/articles/10.1186/s41235-019-0179-y. Retrieved: 11/07/2020.

  3. Kraft, C. & Giordano, J. (08/11/2017). Integrating Brain Science and Law: Neuroscientific Evidence and Legal Perspectives on Protecting Individual Liberties. Frontiers in Neuroscience. https://www.frontiersin.org/articles/10.3389/fnins.2017.00621/full. Retrieved: 15/07/2020.

  4. Appelbaum, Paul M.D. (01/04/2007). Law & Psychiatry: The New Lie Detectors: Neuroscience, Deception, and the Courts. https://ps.psychiatryonline.org/doi/full/10.1176/ps.2007.58.4.460. Retrieved: 14/09/2020.

  5. United Nations. (10/12/1948). Universal Declaration of Human Rights. United Nations. https://www.un.org/en/universal-declaration-human-rights/. Retrieved: 13/07/2020.

  6. U.S. Const.  amend.  IV. https://www.law.cornell.edu/constitution/fourth_amendment. Retrieved: 16/07/2020.

Laura Cho

Laura Cho


Del Norte High School