Towards New, Modified Human Rights in The Era of Neurotechnology: Call for International Human Rights Law

Ehab Mohamed


Modern advancements in neurotechnology and neuroscience may open unparalleled routes that invade individuals’ personal spheres ranging from collecting and accessing to sharing and even manipulating a person’s brain information. Such implantations pose notable threats to human rights principles; these challenges ought to be addressed to prevent unintended repercussions. This article assesses the implications of the emerging applications of neurotechnology in the context of the human rights framework and suggests, according to several case reports, that existing human rights legislation may not be sufficient to face such emerging circumstances. Finally, after careful interpretations and analysis of these issues, this article identifies four possible new/updated rights that may play a prominent role in covering these issues in the upcoming decades.



For a prolonged period of time, the boundaries of the skull have been considered the separation line between the observable and unobservable dimensions of human beings. However, cutting-edge advancements in neuroscience and neurotechnology have progressively revealed the mystery of the human brain and supplied insights into the brain’s processes, as well as their link to mental states and observable behavior, respectively.

 Beginning in 1878 by coming across a transmission of electrical signals through an animal's brain, the practice of brain imaging became a desirable approach. Later on, the first human electroencephalography (EEG) was recorded. Following that, in the 1990s, commonly called 'the decade of the brain,' neurobehavioral uses of imaging techniques extended dramatically [1]. Since then, the neurotechnological revolution has taken vital roles inside and outside clinical settings. Nowadays, as a vast and increasingly expanding spectra of neuroimaging technologies has come to be clinically and commercially available, the non-invasive recording and collecting of brain activity styles have become an accepted contemporary practice (starting from EGG, EPs, and ERP to fMRI and more.)

Furthermore, the capacity of neuroimaging techniques to map the brain’s functions and activities has been verified and deemed effective in gaining insights into people's intentions, perspectives, and attitudes. Beyond the clinical and medical uses, a peer-reviewed study used fMRI scans on individuals who significantly drink Coca-Cola against the same individuals drinking unlabeled Cola to display activity differences [2]. The results of this study have pioneered the establishment of a spin-out branch of neuroscience at the intersection with marketing research called “neuro-marketing." Since then, the concept of neuro-marketing has been expanded dramatically over the past decade, from well-known multinational companies like Google, Disney, CBS, and Frito-Lay to several leading companies in the mobile communication industry, including Apple and Samsung — neuromarketing research services were used to measure consumer preferences and even impressions on their advertisements and products. Namely, Neurofocus, an American multinational neuromarketing company recently acquired by Nielsen, tested subliminal techniques with the purposes of eliciting responses (e.g. preferring item A instead of B) that people cannot consciously register [3]. 

Predictably, if, within the previous years, neurotechnology has made the human brain an open book for scientists and comprehensible under scientific lenses, the upcoming years will witness neurotechnology becoming more pervasive and embedded in several aspects of our daily lives and swiftly more powerful in modulating the psychological and behavioral neural correlation. Nevertheless, while welcoming progress in the neurotechnology revolution, abuse, and other inappropriate implementations should be considered early and proactively, as it can lead to risks in spawning unauthorized forms of intrusion into people's private sphere, conceivably causing physical or psychological harm, and even allowing unprecedented impacts on people's conduct.


The Era of Neurotechnology 

In and outside clinical and research settings, the capacity and range of neurotechnology applications are increasingly expanding. The prospective ubiquitous distribution of cheaper, scalable, and easy-to-use neuro-applications has the potential of opening unprecedented opportunities at the brain-machine interface and making neurotechnology intricately embedded in every aspect of our daily life practices. While these technological trends may generate monumental advantages for society at large in terms of clinical benefit, self-quantification, marketing analysis, personalized technology uses, and even judicial accuracy, itsrepercussions on the ethical and legal frameworks remain largely ignored by many authorities. In contrast to other biomedical technologies, especially genetic data that has been subjected to standard-setting efforts at the domestic and international levels, yet international human rights laws have not made any explicit references to neuroscience, while neurotechnology undergoes the same scenario that genetics studies have taken earlier [4].

Given the radical changes that neurotechnology imposes in the digital ecosystem, the normative terrain should be urgently prepared to prevent misuse or inappropriate implantations, which may pose amendments to the current human rights frameworks, in turn requiring either a reconceptualization of existing human rights or the creation of new neuro-explicit rights.

The proposal of these rights should be consistent with two fundamental poles: first, Glen Boire's advocacy of a "jurisprudence of the mind that takes into account the latest understandings of the brain" also, "which situates these within our country's tradition of embracing individual, self-determination and limited government. [5]" Second, the proposal of genetic-explicit human rights was declared by the Universal Declaration on the Human Genome and Human Rights (UDHGHR) and the International Declaration on Human Genetic Data(IDHGD). Conceivably, four approaches could be developed to prevent the repercussions of neurotechnology: the right to cognitive liberty, the right to mental privacy, the right to psychological continuity, and the right to mental integrity.


The Right to Cognitive Liberty

The recent debate over the notion of cognitive equality was considered a critical first step in establishing a neuro-oriented human rights framework. According to the Cognitive Enhancement book, specifically pages 233-264, this complex notion, often called "mental self-determination," comprises two fundamental, intimately related principles: "the right of individuals to use evolving neurotechnology" and “the protection of individuals from the unconsented and coercive use of such applications. [6]" The benefits of enforcing this notion extend beyond the prohibition of individuals from invading their private sphere, accessing their thoughts, modulating their emotions, or manipulating their personal preferences as it also will prevent social inequality because of the close relation with drug policy reform and the concept of human enhancement. However, in its negative sense of protection from coercive use, cognitive liberty can only partly encompass inappropriate uses of emerging neurotechnology. Indeed, illicit intrusions into a person’s mental privacy may not necessarily involve coercion since it could be performed below the threshold of a persons’ conscious experience. The same principle applies to actions involving harm to a person’s mental wellbeing or unauthorized modifications of a person’s psychological continuity, which are also facilitated by emerging neurotechnologies’ ability to secretly promote interventions into a person’s neural processing in absence of the person’s awareness. In this respect, the right to mental privacy and psychological continuity was proposed as potential complementary solutions.


The Right to Mental Privacy and Psychological Continuity

Today’s info-sphere is more intrusive than at any other time in history. Websites regularly use cookies to record store visitors’ information. Big and small corporations engage in data-mining activities that capture massive amounts of data about users. Email accounts are stuffed with advertisements and unsolicited offers. Video surveillance, facial recognition technology, and spyware are opening up people’s daily activities for public consumption. As Dr. Adam D. Moore puts it, “informational privacy is everywhere under siege [7].” 

Therefore, with more threats hovering over emerging neuro-applications, ranging from “inception problem” to specious EGG use and its linkage with tracing personal identity, it can be argued that current privacy and data protection rights are insufficient to cope with the emerging neurotechnological circumstances. Consequently, the right of mental privacy is highly recommended, as it will protect private and sensitive information in an individual's brain from unauthorized assortment, storage, hacking, use, or even erasure — in digital form or otherwise. In contrast to existing privacy rights, the right to mental privacy will guarantee the protection of private data before any extra-cranial externalization (e.g., in verbal or printed format) and the generator/source of such data. As such, it will shield a person's intellectual dimension as the ultimate domain of information privacy in the digital ecosystem. In coordination with that, people’s perception of their own identity may be put at risk through inappropriate uses of emerging neurotechnologies, like the unconscious use of neural devices that not only monitor brain signals but also modulate and process these signals and stimulate brain functions (e.g. tDCS or DBS). According to Dr. Decker & Fleischeret’s research on aspects of a technology assessment of neural implants, any changes in brain functions caused by brain stimulation can generate unexpected consequences on mental states and thus touch an individual’s personal identity [8]. Thus, the right to psychological continuity that will protect the mental substrates of personal identity from uncontrolled and unconsented intrusion/modification by third parties through invasive or non-invasive neurotechnology is necessary. 


The Right to Mental Integrity

Finally, in view of the emerging collateral risks associated with the extensive use of pervasive neurotechnology, such as hazardous uses of medical neurotechnology, military applications of BCI as well as malicious brain-hacking, the right to mental integrity may entail reconceptualization. Namely, Dr. Lebedev has described that a neurologically controlled prosthetic could send tactile information back to the brain in nearly real-time by using intracortical microstimulation (ICMS), essentially creating a “brain-machine-brain interface [9].” Indeed, although mental integrity is protected by Article 3 of the EU Charter of Fundamental Rights, this right is conceptualized as a right to accessing and protecting mental health and is complementary to the right to physical integrity. Thus, and with respect to nascent circumstances of the neurotechnology applications, the right to mental integrity should not exclusively guarantee protection from mental illness or traumatic injury, but also from unauthorized intrusions into a person’s mental welfare through the use of such applications, especially if such intrusions result in physical or mental harm to the user [10]. So, for specific action to be counted as a threat to mental integrity, it has to: (I) involve direct access to and processing of neural signaling, (II) be unauthorized –i.e. must occur in absence of the informed consent of the signal generator, (III) result in psychological and/or physical harm. In fact, some may overlap this notion with the right to psychological continuity but the key difference is that the right to psychological continuity applies to emerging circumstances that do not directly involve neural or mental harm. 



Cutting-edge advancements in neurotechnology have opened unprecedented tracks for collecting, accessing, and sharing one’s brain information, which in turn may develop as a threat to current human rights. Thus, as neurotechnology evolves, the international human rights law and concerned authorities are required to test the normative solidity of this proposed expansion of the human right frameworks to the neurotechnology dimension in conjunction with investigating the implications of such proposed human rights on other levels of law to offer sustainable censorship and guidance to researchers while providing protection to the public.


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Ehab Mohamed

Ehab Mohamed

The chapter's overall goal is to provide an exciting and rewarding awareness of neuroscience education to the high school students in the Egyptian community, encouraging and enabling them to explore the wonders of the brain and nervous system.