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Neuroscience, Mental Privacy, and the Law
Abstract
Will brain science be used by the government to access the most private of spaces — our minds — against our wills? Such scientific tools would have tremendous privacy implications if the government suddenly used brain science to more effectively read minds during police interrogations, criminal trials, and even routine traffic stops. Pundits and scholars alike have thus explored the constitutional protections that citizens, defendants, and witnesses would require to be safe from such mind searching. Future-oriented thinking about where brain science may lead us can make for great entertainment and can also be useful for forward-thinking policy development. But only to a point. In this Article, I reconsider these concerns about the use of brain science to infer mental functioning. The primary message of this Article is straightforward: “Don’t panic!” Current constitutional protections are sufficiently nimble to allow for protection against involuntary government machine-aided neuroimaging mind reading. The chief challenge emerging from advances in brain science is not the insidious collection of brain data, but how brain data is (mis)used and (mis)interpreted in legal and policy settings by the government and private actors alike. The Article proceeds in five parts. Part I reviews the use of neuroscientific information in legal settings generally, discussing both the recent rise of neurolaw as well as an often overlooked history of brain science and law that stretches back decades. Part II evaluates concerns about mental privacy and argues for distinguishing between the inferences to be drawn from the data and the methods by which the data is collected. Part III assesses current neuroscience techniques for lie detection and mind reading. Part IV then evaluates the relevant legal protections available in the criminal justice system. I argue that the weight of scholarly opinion is correct: The Fourth Amendment and Fifth Amendment likely both provide protections against involuntary use of machine-aided neuroimaging mind reading evidence. Part V explores other possible machine-aided neuroimaging mind reading contexts where these protections might not apply in the same way. The Article then briefly concludes.
... For example, it is hard to say that analysis of brain data, such as EEG data, can allow us to read a subject's mind, rather it merely detects neural responses to certain stimuli that may be more salient than others [15]. Moreover, several articles pointed out that, although inferences from brain data produced by advanced machinery can provide meaningful insights into how the mind works, brain data inferences are not inherently better or worse than data collected by more traditional means [31]. ...
... Social Impact (i.e., Surveillance) Brain data could have a variety of applications in society. The use of brain data in the context of law enforcement has received particular attention due to the possibility of coercive disclosure of a criminal defendant's brain data to infer guilty knowledge at a trial or to predict future criminal behavior [31,32]. Inferences drawn from the data could be used to limit access to health insurance, education, employment, or financial loans; sensitive health information contained in the data could also affect public health or patient privacy [12]. ...
... However, several articles questioned the need for additional regulations to protect brain data. For example, one argument was advanced that existing US constitutional protections "are sufficiently nimble" to provide safeguards against unwanted intrusion into mental privacy [31]. The potential of reading the mind from analyzing brain data may also not require substantial changes in the practice of neuroscience research, including measures to protect the confidentiality of data under existing IRB guidelines [28]. ...
Advances in neurotechnologies, artificial intelligence (AI) and Big Data analytics are allowing interpretation of patterns from brain data to identify and even predict and manipulate mental states. Furthermore, there are avenues through which brain data can move into the consumer sphere, be reidentified and brokered. In response to these developments, there have been a number of approaches proposed to strengthen protections of brain data. To better understand the landscape of brain data protection discussions, we conducted a scoping review to identify the rationales for establishing brain data protections and the proposals for protecting brain data offered in the ethics and neuroscience literature. To draw comparisons, we also surveyed the rationales given in the literature for the protection of sensitive behavioral inferences drawn from other types of personal data and associated approaches to achieving protection. This systematic examination of the rationale behind heightened protection for brain data should be useful to clarify the functional and conceptual bases given for brain data protection and to provide a better grounding for evaluating how the different approaches to brain data protection address these concerns.
... There are no publications elaborating the proposed set of rights or individual rights, with the exception of one-mental privacy. The idea has received some scholarly attention (e.g., [9][10][11][12], with mixed results regarding its recognition as a standalone right [13][14][15]. Apart from that, I am not aware of a single peer-reviewed publication in the field of human rights or constitutional law that provides a clear and substantive statement about meaning or scope of the other proposed rights. ...
... A lawmaker informed by scholars from prestigious institutions about dangerous new technologies that "could challenge the very notion of what it means to be human", with the "potential to foundationally alter society" better heeds their advice. 12 Lawmakers act in an epistemic deficit that advisors fill with their expertise. This generates responsibilities. ...
... The paper discusses four potential rights, which are more specific and better embedded in existing human rights scholarship than those of the NRI's proposal. Also, the proposal by Ienca and Andorno might be more a reinterpretation or "reconceptualization" of existing rights rather than the creation of novel ones.12 Quotes from the initiative's website, https:// nri. ...
This paper analyses recent calls for so called “neurorights”, suggested novel human rights whose adoption is allegedly required because of advances in neuroscience, exemplified by a proposal of the Neurorights Initiative. Advances in neuroscience and technology are indeed impressive and pose a range of challenges for the law, and some novel applications give grounds for human rights concerns. But whether addressing these concerns requires adopting novel human rights, and whether the proposed neurorights are suitable candidates, are a different matter. This paper argues that the proposed rights, as individuals and a class, should not be adopted and lobbying on their behalf should stop. The proposal tends to promote rights inflationism, is tainted by neuroexceptionalism and neuroessentialism, and lacks grounding in relevant scholarship. None of the proposed individual rights passes quality criteria debated in the field. While understandable from a moral perspective, the proposal is fundamentally flawed from a legal perspective. Rather than conjuring up novel human rights, existing rights should be further developed in face of changing societal circumstances and technological possibilities.
... L. Roskies, 2012;Shadlen & Roskies, 2012). Additionally, brain reading methods seem to threaten the last of our private spaces, making our mind publicly accessible and thereby generating a number of societal issues regarding privacy (Gilead, 2015;Shen, 2013) and data security (Ienca, Haselager, & Emanuel, 2017). ...
... Brain reading has recently captured the interest of both popular (Roth, 2009;Sample, 2012;Wolpe, 2009) and scientific (Farah, Smith, Gawuga, Lindsell, & Foster, 2009;J.-D. Haynes, 2012;Shen, 2013) press, that have discussed it from different perspectives, generating hype and expectations in society. Orwellian scenarios, where brain reading technology could be misused by ill-intentioned agents to invade our privacy against our will, have been devised on numerous occasions (Shen, 2013). ...
... Haynes, 2012;Shen, 2013) press, that have discussed it from different perspectives, generating hype and expectations in society. Orwellian scenarios, where brain reading technology could be misused by ill-intentioned agents to invade our privacy against our will, have been devised on numerous occasions (Shen, 2013). This possibility, however, depends in large part on the extent to which current brain reading technology can identify mental states and some of their most specific characteristics, such as the exact content of beliefs and desires, or their combinatorial structure. ...
... What precedent is there for establishing the "neuro-cognitive" rights of the individual? Shen (2013) has commented that the growing capabilities of neuroscience have spurred a kind of "mental privacy panic" (668); in the wake, there have been numerous attempts to create a framework for protecting these rights. Boire (2001) and Greely (2006) were among the first to investigate how these rights are linked fundamentally to the human person. ...
... How would individual "neuro-cognitive rights" be protected in the American courtroom? Many have looked to the Constitution of the United States as a foundation for these rights (see Boire, 2005;Tovino, 2007;Shen, 2013). Of course, the rights defined by the Constitution do not immediately seem to approximate intuitions about the sanctity of thought-and it is unlikely that the framers of the Constitution were prepared to consider mental processes as being externally assessable. ...
... Schmerber v. California (1966) asserted that "the overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State" (384 U.S. 767). In the case of collecting neuroscientific evidence, it is the amendment's "search and seizure" clause that is most relevant (Boire, 2005;Shen, 2013). The question is whether gathering neuro-cognitive evidence constitutes an overly intrusive search of an individual's person. ...
Advances in neuroscientific techniques have found increasingly broader applications, including in legal neuroscience (or “neurolaw”), where experts in the brain sciences are called to testify in the courtroom. But does the incursion of neuroscience into the legal sphere constitute a threat to individual liberties? And what legal protections are there against such threats? In this paper, we outline individual rights as they interact with neuroscientific methods. We then proceed to examine the current uses of neuroscientific evidence, and ultimately determine whether the rights of the individual are endangered by such approaches. Based on our analysis, we conclude that while federal evidence rules constitute a substantial hurdle for the use of neuroscientific evidence, more ethical safeguards are needed to protect against future violations of fundamental rights. Finally, we assert that it will be increasingly imperative for the legal and neuroscientific communities to work together to better define the limits, capabilities, and intended direction of neuroscientific methods applicable for use in law.
... Nevertheless, this does not dismiss our ability to accurately infer others' mental states at least some of the time. As Shen [59] emphasizes, in some regard, we are all "natural born mind readers" ( [59], 656). The universal capacity to ascribe mental states to others is what cognitive scientists characterize as a 'theory of mind'; and while there is dispute over whether it is achieved by theoretical reference or simulated modelling, there is agreement that natural mind reading is a fundamental capacity through which humans understand each other. ...
... Nevertheless, this does not dismiss our ability to accurately infer others' mental states at least some of the time. As Shen [59] emphasizes, in some regard, we are all "natural born mind readers" ( [59], 656). The universal capacity to ascribe mental states to others is what cognitive scientists characterize as a 'theory of mind'; and while there is dispute over whether it is achieved by theoretical reference or simulated modelling, there is agreement that natural mind reading is a fundamental capacity through which humans understand each other. ...
A pressing worry in the ongoing neurorights debate is the language used to advocate for newly proposed rights. This paper addresses this concern by first examining the partial and ambiguous associations between mind reading and neurotechnology, often cited by advocates in support of the right to mental privacy. Secondly, it addresses the conceptual foundations of mind reading, distinguishing between natural, digital, and neurotechnological forms. These distinctions serve to highlight the normative parallels in privacy vulnerabilities between neurotechnology and other mind-reading methods, with an emphasis on multimodal digital systems. I suggest that authentic safeguards for the mental realm demand an expansion of the protective ambit beyond brain-targeted devices to recognize the spectrum of mind-reading applications. Ultimately, this urges re-evaluation of the scope and justification of a right to mental privacy owing to the need for coherent frameworks in an increasingly interconnected digital landscape.
... From a broad scientific perspective, neurotechnologies measure lots of different things, and many of these are better described as physical than mental properties, depending on what conclusions are to be drawn from them (Shen, 2013). The brain is responsible for myriad physical processes, such as metabolizing fat and regulating the heart, which aren't directly related to a person's subjective self. ...
... Pennsylvania v. Muniz (496 U.S. 582 [1990]) illustrates this point. The court decided that those suspected of driving under the influence of alcohol or drugs do not need to be read their Miranda rights before their sobriety is assessed because the relevant inference concerns "the physiological functioning of [their] brain," and the brain constitutes physical information (Shen, 2013). Similarly, in Schmerber v. California (384 U.S. 757 [1966]), the court used information from the defendant's blood test to determine his blood-alcohol level while he was hospitalized. ...
Philosophers and neuroscientists address central issues in both fields, including morality, action, mental illness, consciousness, perception, and memory.
Philosophers and neuroscientists grapple with the same profound questions involving consciousness, perception, behavior, and moral judgment, but only recently have the two disciplines begun to work together. This volume offers fourteen original chapters that address these issues, each written by a team that includes at least one philosopher and one neuroscientist, who integrate disciplinary perspectives and reflect the latest research in both fields. Topics include morality, empathy, agency, the self, mental illness, neuroprediction, optogenetics, pain, vision, consciousness, memory, concepts, mind wandering, and the neural basis of psychological categories.
The chapters first address basic issues about our social and moral lives: how we decide to act and ought to act toward each other, how we understand each other's mental states and selves, and how we deal with pressing social problems regarding crime and mental or brain health. The following chapters consider basic issues about our mental lives: how we classify and recall what we experience, how we see and feel objects in the world, how we ponder plans and alternatives, and how our brains make us conscious and create specific mental states.
Contributors
Sara Abdulla, Eyal Aharoni, Corey H. Allen, Sara Aronowitz, Jenny Blumenthal-Barby, Ned Block, Allison J. Brager, Antonio Cataldo, Tony Cheng, Felipe De Brigard, Rachel N. Denison, Jim A. C. Everett, Gidon Felsen, Julia Haas, Hyemin Han, Zac Irving, Kristina Krasich, Enoch Lambert, Cristina Leon, Anna Leshinskaya, Jordan L. Livingston, Brian Maniscalco, Joshua May, Joseph McCaffrey, Jorge Morales, Samuel Murray, Thomas Nadelhoffer, Laura Niemi, Brian Odegaard, Hannah Read, Robyn Repko Waller, Sarah Robins, Jason Samaha, Walter Sinnott-Armstrong, Joshua August Skorburg, Shannon Spaulding, Arjen Stolk, Rita Svetlova, Natalia Washington, Clifford Workman, Jessey Wright
... Brain reading's potential implications for mental privacy have recently captured the interest of both the popular (Roth 2009;Sample 2012;Wolpe 2009) and the scientific press (Farah et al. 2009;Haynes 2012;Shen 2013), generating hype and expectations (hopes as well as fears) in society. On the one hand, brain reading technology might lead to a number of clinical and scientific advances regarding the nature of mental states and their neural representations. ...
... 4 It is important to note that the concept of brain reading has been used in the literature with different degrees of generality. For instance, whereShen (2013) uses it in a more liberal fashion to include any form of brain measurement,Haynes (2012) tends to equal it to the concept of brain decoding. Since we aim at conceptual clarification, we will use 'brain measurement' for the most general version and 'brain reading' only for those applications aimed at decoding (classifying and interpreting) mental states.Content courtesy of Springer Nature, terms of use apply. ...
Contemporary brain reading technologies promise to provide the possibility to decode and interpret mental states and processes. Brain reading could have numerous societally relevant implications. In particular, the private character of mind might be affected, generating ethical and legal concerns. This paper aims at equipping ethicists and policy makers with conceptual tools to support an evaluation of the potential applicability and the implications of current and near future brain reading technology. We start with clarifying the concepts of mind reading and brain reading, and the different kinds of mental states that could in principle be read. Subsequently, we devise an evaluative framework that is composed of five criteria-accuracy, reliability, informativity, concealability and enforceability-aimed at enabling a clearer estimation of the degree to which brain reading might be realistically deployed in contexts where mental privacy could be at stake. While accuracy and reliability capture how well a certain method can access mental content, informativity indicates the relevance the obtainable data have for practical purposes. Concealability and enforceability are particularly important for the evaluation of concerns about potential violations of mental privacy and civil rights. The former concerns the degree with which a brain reading method can be concealed from an individual’s perception or awareness. The latter regards the extent to which a method can be used against somebody’s will. With the help of these criteria, stakeholders can orient themselves in the rapidly developing field of brain reading.
... En contraparte, Shen (2013) sostiene que no existe suficientes argumentos para preocuparnos respecto al uso de las tecnologías del cerebro para inferir el funcionamiento mental, es más, los dispositivos constitucionales son lo suficientemente eficientes como para hacer viable una adecuada tutela contra la lectura de la mente involuntaria por parte de terceros; sin embargo, el autor advierte que surgen complicaciones al momento de analizar 3 Gilbert y Russo (2024) mediante un análisis bibliométrico establecieron que la noción de leer la mente desde el cerebro es una metáfora que posee mucho tiempo en el ámbito científico, tal es así que, ya en 1755 el médico Guillaume-Lambert sugirió que existe la posibilidad de leer los pensamientos del ser humano a través de herramientas ad hoc para interpretar las letras que se albergan en el cerebro. Asimismo, los autores indican que la creciente capacidad de decodificar la actividad cerebral ha generado preocupaciones éticas sin precedente en el ámbito científico; cabe resaltar que afirmaciones en artículos científicos -que giran en torno a la posibilidad de acceder a los pensamientos de las personas a través de dispositivos de tecnología cerebral; o el hecho de que tanto el gobierno como empresas privadas se encuentran desarrollando dispositivos que hagan viable la comunicación de que las personas puedan comunicarse pensando, acceder a la data almacenada en la mente y decodificar los pensamientos de otros sujetos leyendo los datos de sus cerebros -generan más pánico. ...
El objetivo del presente artículo es analizar la naturaleza de los neuroderechos para que de este modo se pueda evaluar la probable generación de una nueva categoría de derechos humanos, la cual debería alienarse a las bases propuestas por la biojurídica en razón de su eficacia respecto a las nuevas tecnologías. Asimismo, para la confección del presente estudio se aplicó la metodología “Revisión Integrativa de la Literatura (RIL)” en razón de que, a través de este método, el investigador es capaz de superar procesos propios de las investigaciones primarias; aunado a ello, gracias a las herramientas propias de esta metodología se puede tener un mayor entendimiento del objeto estudiado. Finalmente, se llegó a demostrar que a pesar de que el sistema jurídico – considerando algunas modificaciones – podría hacerles frente a los efectos contrarios de las neurotecnologías, en atención a que determinados agentes internacionales como la UNESCO están en vías de la creación de un instrumento ad hoc para regular el uso y abuso de las tecnologías del cerebro, se hace imperioso sugerir que se tomen en cuenta bases propuestas por la bioética personalista y la biojurídica.
... In the context of healthcare, brain data has been used for a long time for diagnostic purposes (for example with EEG systems). Recent developments in technology allow for increasing collection, processing, and use of brain data (potentially 'mind reading') and direct interaction with neural processes (potentially 'brain alteration'), which could lead to intrusion of the personal sphere, potentially compromising the freedom of thought (Shen, 2013). While there is thorough legal protection for other types of information about the body, brain information as such is currently not considered personal data, thus excluding it from the sphere of privacy and data protection rights (Ienca & Andorno, 2017). ...
The rapid advancement of digital health innovation, including Artificial Intelligence (AI), is transforming healthcare. The growing role the European Union (EU) plays in regulating the use of AI in healthcare renders national laws insufficient to safeguard patients from unique AI-related risks. This underscores the urgent need for the recognition of a canon of patients' rights in the scope of EU law. This paper proposes the blueprint for an EU Charter for Digital Patients' Rights, consolidating and adapting existing rights for patients to address these specific challenges. Traditional patients' rights such as the right to privacy and the right to informed consent are interpreted in light of the challenges posed by AI. It also proposes novel rights for patients, such as the right not to be subject to automated medical decision-making and the right to meaningful human contact. This paper highlights the EU's central role in protecting patients' rights and outlines strategies for effective implementation. This comprehensive approach aims to address the current shortcomings and enhance the legal framework governing digital health in Europe. 2
... It typically refers to the presumption that the contents of a person's mind are only known to that person. In other words, it signifies the right of people against the unauthorized intrusion by third parties of their brain data and against the unauthorized collection of that data (Shen, 2013). In an age of pervasive and ubiquitous neuromorphic computing (such as the one permeated by the NeuroGate as described in Sect. 2 above), the presumption of mental privacy cannot be taken for granted. ...
This article discusses recent advancements in neurotechnologies and how they seem to support the Extended Mind Thesis (EMT), while also raising concerns about the mental integrity and privacy of individuals. In Sect. 1 we review recent research carried out at the frontiers of Brain Machine Interfaces (BMIs) and neuromorphic computing. Taking inspiration (Sect. 2) from research in these fields we present -with the help of some imagination- a futurist scenario of complete human-computer integration. We discuss a set of practical benefits and risks associated with the implementation of such a scenario, which -despite being fictional at the time of writing- is likely to be realized soon. We frame our discussion (Sect. 3) in the context of research conducted in the cognitive sciences on the extended mind thesis (EMT). We reflect on the epistemic and ontic aspects underlying such a scenario and argue that EMT finds supports in it. We further problematize (Sect. 4) around the significance of this envisaged scenario for research on neuro-rights. We therefore also discuss a series of ethical challenges related to their potential infringement. We conclude the paper (Sect. 5) by showing that the development of specific neurotechnologies can make the extension of the mind an increasingly pervasive and transformative phenomenon, while raising important concerns about the potential consequences for certain characteristics of individuals that may be crucial to preserve through the introduction of neurorights.
... According to Gilbert and Russo (2024, p. 855), the issues discussed frequently include mental privacy (SHEN, 2013), mental freedom (BUBLITZ, 2016), and personhood (SOLUM, 2020).Furthermore, Yuste et al. (2017, p. 160) propose four areas of concern: privacy and consent; agency and identity; augmentation; and bias.Many questions arise about the use of AI in neuroscience. These include (Hildt; Laas; Sziron, 2020, p. 274): ...
Introduction: implants and technological devices are being used to decode neural activity to move a prosthetic arm, control an avatar, and turn thoughts into text through an AI-based decoder. These situations are designed by Brain-computer Interface (BCI), one of the main AI-based neurotechnologies used to understand the brain and to improve people's welfare. In 2023, UNESCO already recognized its benefits but also revealed the potential ethical issues and problems, particularly with its use of non-invasive interventions. Objective: so, this essay aims to answer the following research question: which Ethical standards can be designed and used to balance the person’s rights with technological development to prevent vulnerability situations? Method: the methods used in this work is the bibliographic research plus the hermeneutic interpretation. Results: it proposes Ethical standards for protecting the rights of the vulnerable to ensure that these rights are respected. Conclusions: there is no need for the creation of a new neurorights. Privacy and intimacy can and will deal with all the issues of neurotechnologies. However, it is necessary to improve the protection of the owner's rights through strong ethical and governance standards.
... [17][18][19]). The notion of mental privacy refers to the degree of control that subjects should have over the access to their own neural data (or, at least, that informed consent is necessary for obtaining access) and to the information about their mental processes and states that can be obtained by analyzing such data [17,[19][20][21][22][23][24]. ...
The concept of mental privacy can be defined as the principle that subjects should have control over the access to their own neural data and to the information about the mental processes and states that can be obtained by analyzing it. Our aim is to contribute to the current debate on mental privacy by identifying the main positions, articulating key assumptions and addressing central arguments. First, we map the different positions found in current literature. We distinguish between those who dismiss concerns about mental privacy and those who endorse them. In this latter group, we establish a further disagreement between conservative and liberal strategies to protect mental privacy. Then, we address the first discussion by articulating and criticizing different skeptical views on mental privacy. Finally, we try to identify what are the unique features of neural data and examine how they may be connected to the ways in which neurotechnological mindreading could put mental privacy at risk. We suggest that even if neural data is unique, it may not require new strategies to protect people from its misuse. However, identifying the special features and risks of neurotechnological mind-reading is necessary for the second discussion on mental privacy to properly take off.
... Importantly, the unique methods and capabilities of computer perception technologies may violate privacy both in the traditional sense (relating to data security and identification noted above) but also in a newer, deeper sense, violating what scholars now refer to as "mental privacy" (Wajnerman Paz, 2021;Farahany, 2023;Susser and Cabrera, 2023). These new types of threats have recently gained attention in the neuroethics literature, with scholars calling for "neurorights" (Yuste et al., 2017) to mental integrity, privacy and cognitive liberty (Bublitz, 2013;Shen, 2013;Ienca, 2017;Ienca and Andorno, 2017;Lavazza, 2018;Farahany, 2019;Jwa and Poldrack, 2022;Wajnerman Paz, 2022). These rights revolve around the notion that individuals should be free from influence or interference in their subjective experiences and should have agency over their neural data and any insights that may be obtained or inferred from them. ...
Background
Artificial intelligence (AI)-based computer perception technologies (e.g., digital phenotyping and affective computing) promise to transform clinical approaches to personalized care in psychiatry and beyond by offering more objective measures of emotional states and behavior, enabling precision treatment, diagnosis, and symptom monitoring. At the same time, passive and continuous nature by which they often collect data from patients in non-clinical settings raises ethical issues related to privacy and self-determination. Little is known about how such concerns may be exacerbated by the integration of neural data, as parallel advances in computer perception, AI, and neurotechnology enable new insights into subjective states. Here, we present findings from a multi-site NCATS-funded study of ethical considerations for translating computer perception into clinical care and contextualize them within the neuroethics and neurorights literatures.
Methods
We conducted qualitative interviews with patients (n = 20), caregivers (n = 20), clinicians (n = 12), developers (n = 12), and clinician developers (n = 2) regarding their perspective toward using PC in clinical care. Transcripts were analyzed in MAXQDA using Thematic Content Analysis.
Results
Stakeholder groups voiced concerns related to (1) perceived invasiveness of passive and continuous data collection in private settings; (2) data protection and security and the potential for negative downstream/future impacts on patients of unintended disclosure; and (3) ethical issues related to patients’ limited versus hyper awareness of passive and continuous data collection and monitoring. Clinicians and developers highlighted that these concerns may be exacerbated by the integration of neural data with other computer perception data.
Discussion
Our findings suggest that the integration of neurotechnologies with existing computer perception technologies raises novel concerns around dignity-related and other harms (e.g., stigma, discrimination) that stem from data security threats and the growing potential for reidentification of sensitive data. Further, our findings suggest that patients’ awareness and preoccupation with feeling monitored via computer sensors ranges from hypo- to hyper-awareness, with either extreme accompanied by ethical concerns (consent vs. anxiety and preoccupation). These results highlight the need for systematic research into how best to implement these technologies into clinical care in ways that reduce disruption, maximize patient benefits, and mitigate long-term risks associated with the passive collection of sensitive emotional, behavioral and neural data.
... However, caution should be observed: the alleged foundations of criminal responsibility (amongst which free will. Razvoj nevroznanosti je sprožil tudi neke vrste paniko duševne zasebnosti, ki je povezana s pomanjkljivo ali nezadostno regulacijo rabe nevroznanstvenih ali nevroloških podatkov (Shen, 2013). ...
The emergence of neuroscientific methods has provided insights into the link between the activity of specific brain regions and behaviour. An emergence and rapid development of two new disciplines occurred; neurocriminology and neuropsychology. There have also been increasing attempts to use neuroscientific findings in courts of law to examine the existence of causal links between specific
features of brain structure or function and behaviour at the time of offending. Neuroscientific evidence is supposed to provide insight into individual decision-making and behaviour and to provide justification for the legal consequences of criminal behaviour, but despite rapid developments over the last two decades, neuroscientific methods (e.g., fMRI) still do not allow reliable conclusions to be drawn. Neuroscientific evidence is mainly used in courts to prove diminished sanity or insanity, and incapacity to understand the judicial processes. Images of brain activity give the impression of expertise, objectivity and accuracy, but this impression is often deceptive. The review of research in this paper shows that fMRI in particular, does not yet meet the minimum standards of admissibility of evidence
in courts of law. Indeed, its use is non-standardised, and its accuracy and reliability are unknown and questionable. Results of studies related to fMRI are often methodologically flawed and unverifiable, and the technique is not widely accepted as reliable and valid in the scientific community. For these reasons, neuroimaging has only an indicative value and no evidentiary value, and if the court accepts
the neuroscientific findings of experts as evidence, there is a high risk that the court’s decision is flawed.
[The article is written in the Slovene language]
[Published in the Journal of Criminal Investigation and Criminology, 2023, vol. 74, no. 2, 88–99.
... If imaging progressed sufficiently to be able to share a subject's personal knowledge or beliefs, some argue this infringes on individual privacy [43]. Others argue that neuroimaging presented by the opposing side in a court case could be a violation of search and seizure protections [44]. As an example, research has been performed on the utility of functional MRI (fMRI) for lie detection. ...
Dramatic advances in neuroscience have improved physicians’ abilities to diagnose and manage neurological and psychiatric disorders for their patients. Alongside established modalities such as computed tomography (CT), magnetic resonance imaging (MRI), and functional MRI (fMRI), advanced neuroimaging technologies provide new tools for understanding normal human behavior and diagnosing neuropsychiatric disorders impacting human behavior. But the application of these novel technologies, designed to help patients in the treatment setting, to the forensic setting presents unique ethics challenges. Forensic psychiatry is a subspecialty in which scientific and clinical expertise is applied in legal contexts, and in specialized clinical consultations in areas such as risk assessment or employment. In contrast to the treatment setting where advancing the patient’s welfare is primary, the primary duty in forensic settings is to foster truth. Thus, an honest forensic opinion based on good science and evidence may not necessarily benefit the person being evaluated and could cause that person harm. Similarly, artificial intelligence (AI) and machine learning technology are applied to a growing number of clinical and forensic settings, bringing potential to transform how psychiatrists assess an individual’s risk for violence and risk for suicide. Despite this promise, however, these emerging technological advances present significant ethical dilemmas, medico-legal limitations, and the risk of misuse if applied unethically. In this chapter, recent neuroscientific advances in the fields of functional neuroimaging and AI “deep learning” algorithms are reviewed in detail along with the relevant legal and ethical framework, advantages, and potential drawbacks.
... Neurosecurity Security vulnerabilities of neurodevices and neurotech-related datasets Ienca and Haselager, 2016;Pugh et al., 2018;Rickli and Ienca, 2021 Algorithmic bias Bias in AI algorithms embedded in neurodevices or used in analytics Yuste et al., 2017;Schleidgen et al., 2022;Webb et al., 2022 Neurohype Unveiling of semantic or visual content of mental states via neurotechnology and brain-data analytics Haynes, 2011;Shen, 2013;Ienca and Andorno, 2017 benefit. On the one hand, it can prevent the emergence of fear-mongering narratives related to potential neurotechnologyrelated harms that may not materialize for decades. ...
The 2020's decade will likely witness an unprecedented development and deployment of neurotechnologies for human rehabilitation, personalized use, and cognitive or other enhancement. New materials and algorithms are already enabling active brain monitoring and are allowing the development of biohybrid and neuromorphic systems that can adapt to the brain. Novel brain-computer interfaces (BCIs) have been proposed to tackle a variety of enhancement and therapeutic challenges, from improving decision-making to modulating mood disorders. While these BCIs have generally been developed in an open-loop modality to optimize their internal neural decoders, this decade will increasingly witness their validation in closed-loop systems that are able to continuously adapt to the user's mental states. Therefore, a proactive ethical approach is needed to ensure that these new technological developments go hand in hand with the development of a sound ethical framework. In this perspective article, we summarize recent developments in neural interfaces, ranging from neurohybrid synapses to closed-loop BCIs, and thereby identify the most promising macro-trends in BCI research, such as simulating vs. interfacing the brain, brain recording vs. brain stimulation, and hardware vs. software technology. Particular attention is devoted to central nervous system interfaces, especially those with application in healthcare and human enhancement. Finally, we critically assess the possible futures of neural interfacing and analyze the short- and long-term implications of such neurotechnologies.
... Explican que el actual derecho a la privacidad no cubre en su totalidad a la privacidad mental debido a que la definición de privacidad no presenta un consenso (puesto que se incluyen en él de manera dispar el derecho a controlar el acceso a la información personal, a nuestros cuerpos, o a lugares privados específicos). En ese sentido, aseveran que es muy probable que las neurociencias se conviertan en una de las nuevas áreas en las que el derecho a la privacidad deba desempeñar un papel fundamental e inesperado (a este respecto, véase Shen, 2013). ...
A raíz de los avances realizados en neurociencia y sus implicancias en el derecho en general, y el derecho penal en particular, nos proponemos a evaluar si la normativa de los tratados internacionales sobre derechos humanos es suficiente para cubrir los principios que surgen de sus postulados, o si es necesaria una ampliación (ya sea interpretativa o normativa) en Latinoamérica. Realizaremos un breve repaso de los avances en el campo del neuroderecho y consideraremos algunas de las propuestas más destacadas. Trataremos el derecho a la libertad cognitiva, la privacidad y la integridad mentales y la continuidad psicológica. Finalmente, proponemos una ampliación del bloque convencional interamericano de derechos humanos para dar respuesta a los nuevos posibles conflictos de derechos y garantías.
As a result of the advances made in neuroscience and its implications in law in general, and criminal law in particular, we propose to evaluate whether the regulations of international human rights treaties are sufficient to cover the principles that arise from their postulates, or if an extension is necessary (either interpretative or normative) in Latin America. We will carry out a brief review of the advances in the neuro-law field, and we will consider some of the most outstanding proposals. We will address the right to cognitive freedom, mental privacy, mental integrity and psychological continuity. Finally, we propose an expansion of the inter-American human rights conventional bloc to respond to new possible conflicts of rights and guarantees.
... Unlike the derivatives of freedom of thought, the neurorights originating from the right to privacy seem to be characterized by a much greater degree of conceptual and terminological agreement. Mental privacy is the expression generally used to denote people's right against the unconsented intrusion by third parties into their mental data as well as against the unauthorized collection and processing of those data (Ienca & Andorno, 2017a, 2017bShen, 2013;Yuste et al., 2021). Yuste et al. argued that mental privacy is not only a right but also an ability, i.e., «the ability to keep thoughts protected against disclosure» . ...
Neurotechnologies are emerging technologies that establish a connection pathway to the human brain through which human neuronal activity can be recorded and/or altered. These technologies open novel opportunities for exploring, influencing, or intercommunicating with the human brain. Medical neurotechnologies offer the potential to help people with neurological or psychiatric conditions such as Parkinson’s disease, dementia, stroke, and major depressive disorder. Non-medical neurotechnology systems provide new tools and methods to monitor and modulate brain activity in healthy subjects and to interact with digital devices. Intervening effectively and safely in the human brain through neurotechnology is a scientific frontier that must be reached for the good of humanity. At the same time, however, it raises major ethical and legal challenges. Neuroethics and neurolaw are the two main areas of scholarship that address, respectively, the ethical and legal issues raised by our ever-improving ability to intervene in the brain through neurotechnology.
In the past decade, philosophical-legal studies in the fields of neuroethics and neurolaw have given increasing prominence to a normative analysis of the ethical- legal challenges in the mind and brain sciences in terms of rights, freedoms, entitlements, and associated obligations. This way of analyzing the ethical and legal implications of neuroscience has come to be known as “neurorights”. Neurorights can be defined as the ethical, legal, social, or natural principles of freedom or entitlement related to a person’s cerebral and mental domain; that is, the fundamental normative rules for the protection and preservation of the human brain and mind. In their most popular version, neurorights have been defined as an emerging category of human rights designed to protect the brain-mind sphere of the person.
Reflections on neurorights have received ample coverage in the mainstream media and have become a mainstream topic in the public neuroethics discourse. Further, they are rapidly becoming an emerging regulatory tool of international politics. Yet, several meta-ethical, normative-ethical, legal-philosophical and practical challenges need to be solved to ensure that neurorights can be used as effective instruments of global neurotechnology governance and be adequately imported into international human rights law. To overcome these challenges, this report attempts to provide a comprehensive normative-ethical, historical and conceptual analysis of neurorights. In particular, the objective of this report is fivefold as it attempts to (i) provide an overview of current and likely future biomedical neurotechnologies; (ii) reconstruct a history of neurorights and situate these rights in the broader history of ideas; (iii) summarize ongoing policy initiatives related to neurorights in the present international policy landscape; (iv) proactively address some unresolved ethical-legal challenges; and (v) identify priority areas for further academic reflection and policy work in this domain.
The findings of this report suggest that neurorights reflect fundamental human interests that are deeply rooted in the history of ideas. These rights introduce normative specifications related to the protection of the person’s cerebral and mental domain that are not merely repetitive of existing human rights frameworks, but add a new, fundamental level of normative protection. This corroborates the view that human beings generally enjoy a set of rights against certain kinds of interferences in their brains and minds, including those interferences involved in the misuse of neurotechnologies. In addition to protecting against the misuse of neurotechnology, the neurorights spectrum also contains moral and legal provisions aimed at ensuring that neuroscientific and neurotechnological progress is used to empower people and improve human well-being (positive rights). To a large extent, the findings of this report also corroborate the normatively stronger thesis that the fundamental rights and freedoms relating to the human brain and mind should be seen as the fundamental substrate of all other rights and freedoms.
This overview indicates that there is not yet complete consensus regarding the conceptual-normative boundaries and terminology of neurorights. Divergences exist in relation to how these rights are interpreted, named, and conceptually articulated. Nonetheless, some degree of convergence is emerging around three main families of neurorights. First and foremost, the need for specific provisions on the protection of private brain-related information seems to share a high degree of acceptance and recognition. The right to mental privacy appears to be the candidate best equipped conceptually to take on this role. Second, the right to mental integrity appears to have the highest degree of legal entrenchment. While there are some variations in the interpretation of this right, there is full theoretical consensus about the need to protect the person from psychological harm and mental interference. Third, a variety of neurorights candidates have been proposed to preserve and promote the freedom of the human mind and thereby prevent external manipulation. These include evolutionary interpretations of the right to freedom of thought, the right to cognitive liberty, and the right to personal identity.
On the other side of the coin, positive rights such as promoting justice and equality— e.g., through ensuring egalitarian access to neurotechnology for biomedical use and promoting patient welfare on the basis of the ethical principle of beneficence—have so far occupied a secondary role in the neurorights debate.
Introducing neurorights into the human rights framework may require adding new protocols to existing instruments or even stipulating new entirely devoted to neuroethics and neurolaw. In either case, some fundamental problems such as rights inflation and to provide an adequate normative justification for multilateral instruments ethical, meta-ethical, and legal issues must be addressed in order to overcome neurorights. These include introducing justificatory tests for the introduction of neurorights, clarifying the relationship between moral and legal neurorights and harmonizing neurorights with existing normative instruments.
The Council of Europe’s Convention for the Protection of Human Rights and Dignity
of the Human Being with regard to the Application of Biology and Medicine (Oviedo
Convention) offers an ideal platform and normative substrate for the protection and
promotion of neurorights. Given its focus on prohibiting the misuse of innovations in
biomedicine, protecting the dignity and identity of all human beings, and guaranteeing
respect for their integrity and fundamental freedoms, the Convention is well placed for
either enshrining neurorights through ad hoc protocols or for serving as a basis for
future instruments.
Understanding, treating, and augmenting the human brain and mind is one of the great
scientific challenges of our age. Achieving these goals in a way that preserves justice,
safeguards fundamental rights and human dignity is the corresponding task of ethics
and law. Neurorights will likely be a useful tool to accomplish this task.
... Unlike the derivatives of freedom of thought, the neurorights originating from the right to privacy seem to be characterized by a much greater degree of conceptual and terminological agreement. Mental privacy is the expression generally used to denote people's right against the unconsented intrusion by third parties into their brain data as well as against the unauthorized collection of those data (Shen, 2013;Ienca and Andorno, 2017a,b;Yuste et al., 2021). Yuste et al. (2021) argued that mental privacy is not only a right but also an ability, i.e., "the ability to keep thoughts protected against disclosure." ...
In recent years, philosophical-legal studies on neuroscience (mainly in the fields of neuroethics and neurolaw) have given increasing prominence to a normative analysis of the ethical-legal challenges in the mind and brain sciences in terms of rights, freedoms, entitlements and associated obligations. This way of analyzing the ethical and legal implications of neuroscience has come to be known as “neurorights.” Neurorights can be defined as the ethical, legal, social, or natural principles of freedom or entitlement related to a person’s cerebral and mental domain; that is, the fundamental normative rules for the protection and preservation of the human brain and mind. Although reflections on neurorights have received ample coverage in the mainstream media and have rapidly become a mainstream topic in the public neuroethics discourse, the frequency of such reflections in the academic literature is still relatively scarce. While the prominence of the neurorights debate in public opinion is crucial to ensure public engagement and democratic participation in deliberative processes on this issue, its relatively sporadic presence in the academic literature poses a risk of semantic-normative ambiguity and conceptual confusion. This risk is exacerbated by the presence of multiple and not always reconcilable terminologies. Several meta-ethical, normative ethical, and legal-philosophical questions need to be solved in order to ensure that neurorights can be used as effective instruments of global neurotechnology governance and be adequately imported into international human rights law. To overcome the shortcomings above, this paper attempts to provide a comprehensive normative-ethical, historical and conceptual analysis of neurorights. In particular, it attempts to (i) reconstruct a history of neurorights and locate these rights in the broader history of idea, (ii) outline a systematic conceptual taxonomy of neurorights, (iii) summarize ongoing policy initiatives related to neurorights, (iv) proactively address some unresolved ethico-legal challenges, and (v) identify priority areas for further academic reflection and policy work in this domain.
... According to this view, ND is already protected by the regulations that are applied to other kinds of personal information (such as the Fourth Amendment to the United States Constitution). Thus, if one has a "reasonable expectation of privacy" regarding the identifying information derived from one's blood or saliva samples, one also has a reasonable expectation of privacy regarding the data decoded from one's own brain (Shen, 2013). ...
It has been argued that neural data (ND) are an especially sensitive kind of personal information that could be used to undermine the control we should have over access to our mental states (i.e. our mental privacy), and therefore need a stronger legal protection than other kinds of personal data. The Morningside Group, a global consortium of interdisciplinary experts advocating for the ethical use of neurotechnology, suggests achieving this by treating legally ND as a body organ (i.e. protecting them through bodily integrity). Although the proposal is currently shaping ND-related policies (most notably, a Neuroprotection Bill of Law being discussed by the Chilean Senate), it is not clear what its conceptual and legal basis is. Treating legally something as something else requires some kind of analogical reasoning, which is not provided by the authors of the proposal. In this paper, I will try to fill this gap by addressing ontological issues related to neurocognitive processes. The substantial differences between ND and body organs or organic tissue cast doubt on the idea that the former should be covered by bodily integrity. Crucially, ND are not constituted by organic material. Nevertheless, I argue that the ND of a subject s are analogous to neurocognitive properties of her brain. I claim that (i) s’ ND are a ‘medium independent’ property that can be characterized as natural semantic personal information about her brain and that (ii) s’ brain not only instantiates this property but also has an exclusive ontological relationship with it: This information constitutes a domain that is unique to her neurocognitive architecture.
... Dado que los datos decodificados del cerebro de un individuo pueden ser considerados como "información personal" -o "información personalmente identificable", como se llama en los EE.UU.-, no hay en principio ninguna razón por la que tales datos no puedan ser cubiertos por las regulaciones existentes sobre privacidad y protección de datos. Si cada uno de nosotros tiene una "expectativa razonable de privacidad" 5 en relación con la información identificable derivada de la sangre o de muestras de saliva, seguramente también tiene una expectativa razonable de privacidad respecto a los datos decodificados de la propia mente (Shen, 2013). ...
Los rápidos avances en neurociencia y neurotecnología abren un conjunto de posibilidades sin precedentes en el acceso, colecta, diseminación y manipulación de datos del cerebro humano. Estos desarrollos plantean importantes desafíos a los derechos humanos que deben abordarse para evitar consecuencias no deseadas. Este trabajo evalúa las implicaciones de los diferentes usos de las neurotecnologías en relación a los derechos humanos y sugiere que el marco actual de derechos humanos puede no ser suficiente para responder a estos desafíos emergentes. Después de analizar la relación entre neurociencia y derechos humanos, identificamos cuatro nuevos derechos que pueden ser de gran relevancia en las próximas décadas: el derecho a la libertad cognitiva, el derecho a la privacidad mental, el derecho a la integridad mental y el derecho a la continuidad psicológica.
... See e.g.Ligthart (2019) andShen (2013). 8 ECtHR (GC) 5 September 2017, appl.no. ...
Whereas brain-reading technologies could, in principle, strengthen forensic psychiatric evaluations, deploying brain-reading in this context also raises fundamental, interwoven ethical and legal questions. Although both in ethics and in the law similar questions arise in this respect, the legal and ethical debates tend to be separated from each other. This chapter aims to provide some further direction on how ethics and the law could learn from each other in the debate on forensic brain-reading. We argue that although ethical analysis can be very informative for the law, we should be careful in extrapolating ethical arguments into the legal debate. Conversely, legal doctrines can—and should—sometimes inform ethics as well.
... Given the recent proliferation of DTC EEG devices-and indeed, DTC neurotechnology as a whole-it is important to carefully consider the ethical and social issues these products raise. Some scholars have expressed concerns about the potential for privacy and security breaches (Hallinan, Sch€ utz, Friedewald, & de Hert, 2014;Ienca & Andorno, 2017;Pustilnik, 2013;Shen, 2013), arguing that EEG devices already yield information that is rich and personally revealing (Ienca et al., 2018). While we agree that privacy and security may represent potential long-term concerns, we do not believe that these devices are currently capable of revealing personal information, nor is there good evidence to suggest that this will occur in the near future (Wexler, 2019). ...
Direct-to-consumer (DTC) neurotechnologies represent a growing market as companies vie to bring the promise of brain-based devices into consumers' homes. One subtype of these technologies is electroencephalography (EEG) devices, which are marketed for indications ranging from health to entertainment. The transition of EEG from clinical and research settings into people's homes has reignited a debate over mental privacy and fears about mind reading. Other, potentially more imminent concerns, however, have largely remained unexamined. Here, we survey the short-, mid-, and long-term ethical issues that DTC EEG devices may pose, and evaluate the conditions that would need to be met for those concerns to come to fruition. We conclude that the source of most ethical concerns about DTC EEG technology lies not so much in the devices themselves, but in what people believe about these devices and their capabilities.
... Together with important scientific advances, such technology could bring up numerous societally relevant implications. In particular, the private character of mind might be affected to a certain extent, generating ethical and legal concerns [1], [2]. Orwellian scenarios, where brain reading technology could be misused by ill-intentioned agents to invade our privacy against our will, have been in numerous occasion devised by mass media and popular press [3]. ...
Brain reading technology is becoming increasingly able to read mental states in human subjects. We propose some criteria to evaluate the extent to which this capacity could be utilized, currently or in the near future, for practical, societally impacting applications.
... Mental integrity is the basis for freedom of thought as it was classically conceived, before the era of neuro-technological pervasiveness (Shen, 2013). It is the first and fundamental freedom that the individual must be granted in order to have all the other freedoms considered relevant. ...
There are many kinds of neural prostheses available or being researched today. In most cases they are intended to cure or improve the condition of patients affected by some cerebral deficiency. In other cases, their goal is to provide new means to maintain or improve an individual's normal performance. In all these circumstances, one of the possible risks is that of violating the privacy of brain contents (which partly coincide with mental contents) or of depriving individuals of full control over their thoughts (mental states), as the latter are at least partly detectable by new prosthetic technologies. Given the (ethical) premise that the absolute privacy and integrity of the most relevant part of one's brain data is (one of) the most valuable and inviolable human right(s), I argue that a (technical) principle should guide the design and regulation of new neural prostheses. The premise is justified by the fact that whatever the coercion, the threat or the violence undergone, the person can generally preserve a “private repository” of thought in which to defend her convictions and identity, her dignity, and autonomy. Without it, the person may end up in a state of complete subjection to other individuals. The following functional principle is that neural prostheses should be technically designed and built so as to prevent such outcomes. They should: (a) incorporate systems that can find and signal the unauthorized detection, alteration, and diffusion of brain data and brain functioning; (b) be able to stop any unauthorized detection, alteration, and diffusion of brain data. This should not only regard individual devices, but act as a general (technical) operating principle shared by all interconnected systems that deal with decoding brain activity and brain functioning.
The aim of the article is to answer the question of the importance of legal education in ensuring legal ethics and the moral compass of a person by understanding the most important aspects of it. Methods applied include theoretical-scientific analysis, systematic and critical review of scientific literature and other relevant sources, normative and critical analysis of ethical principles in the context of legal education, empirical-quantitative and qualitative analysis of scholarly articles. According to the main thesis of this article, the integration of ethics into legal education can enhance moral development of future lawyers and improve their ability to serve justice. This paper traces the historical neglect of ethics in legal education and argues for its central place in modern studies. For lawyers to serve justice, a well-defined moral compass is essential. Several conclusions are drawn in this article, and first of all it is believed that universities will have to realise that a good lawyer is not only a professionally competent lawyer, because that is not enough in today’s world. Even if it is a personal journey, universities cannot stand aside, the future lawyer must be helped to grow. What is much more important is not so much the codes of ethics but how our moral compass works and what path it can point us down. To avoid getting lost, law schools could teach future lawyers how to empower their moral compass and find their way around. Each law teacher should have to find ways to teach the key virtues of a lawyer’s moral compass (e.g., wisdom, fortitude, temperance, and justice), how to help law students grow and not burn out in difficult situations. As our empirical research shows, the best scholarly articles on legal education discuss the elements of legal ethics. It is recognised that the ethics of lawyers is increasingly becoming an issue that goes beyond the professional aspects, and it is the university that must contribute to the development of the moral compass.
Luego de examinar algunos de los aspectos más fundamentales respecto del concepto general de ‘neuroderecho’ en la discusión mundial actual, este artículo analiza el concepto de ‘lo mental’ contenido en la primera ley de Neuroderechos en el Mundo en actual proceso de discusión en el Senado de Chile (Boletín N° 13.828-19 del Senado de la República de Chile). Se señala que la caracterización del concepto en cuestión no solo podría dificultar la creación de marcos legales específicos respecto de la protección de los sujetos ante el mal uso de neurotecnologías, sino que también podrían oscurecer la toma de decisiones en torno a la interpretación de la ley.
The rise of neurotechnologies, especially in combination with artificial intelligence (AI)-based methods for brain data analytics, has given rise to concerns around the protection of mental privacy, mental integrity and cognitive liberty - often framed as "neurorights" in ethical, legal, and policy discussions. Several states are now looking at including neurorights into their constitutional legal frameworks, and international institutions and organizations, such as UNESCO and the Council of Europe, are taking an active interest in developing international policy and governance guidelines on this issue. However, in many discussions of neurorights the philosophical assumptions, ethical frames of reference and legal interpretation are either not made explicit or conflict with each other. The aim of this multidisciplinary work is to provide conceptual, ethical, and legal foundations that allow for facilitating a common minimalist conceptual understanding of mental privacy, mental integrity, and cognitive liberty to facilitate scholarly, legal, and policy discussions.
Aspects normatifs de l’IA dans la Smart City : Optimisation, régulation et enjeux de gouvernance
El presente artículo se aboca conforme a una investigación teórica documental bajo una propuesta que pretende tener cimientos de rigurosidad ortodoxa científica realista debido a que no es una novela de ciencia ficción más bien es un marco realista de lo que acontece en el progreso neo contemporáneo a axiomas futuristas que se pueden apreciar como fenómenos retro futuristas en cuanto a la aplicabilidad de la ciencias de la “complejidad” como le llaman hoy en día para el progreso de las ciencias neurojuridicas a nivel internacional y nacional en cualquier entidad. Esto con la finalidad de ver los alcances ante un punto crítico ante sus infinitesimales axiomas que puede brindar los campos colaborativos de alta especialidad científica de los cuales son la neurofisica teórica cognitiva experimental en apoyo auxiliar a las neurociencias cognitiva computacional evolutiva y biofísicamente inspirada. Como primordial alcance está en recapitular los más grandes avances desde una perspectiva actual de los desarrollos que la comunidad científica quiere alcanzar para apoyar dichos campos teórico aplicativos de los cuales puede sustentarse esta aportación documental y a una propuesta teórica de cómo estos avances pueden llegar a su punto crítico de evolución a su axioma ultimo de desarrollo. Las disciplinas a investigar de relevancia y de importancia son: Física teórica en base a la neurofisica de la cognición humana. Neurociencia cognitiva computacional Ciencias cognitivas Neuroderecho y ciencia aplicada. La prioridad de esta obra es que la comunidad científica que ejerce a niveles profesionales en el ámbito de las ciencias neurojuridicas esté abierto a nuevos retos como cambios aplicativos a esta ciencia de cambio y orden social. Por lo tanto, a la vez que la ciencia y la tecnología van evolucionado, así como la conciencia a la mente humana los cambios sin duda superan a las de la ciencia ficción ya que se trata de un marco de referencia de la realidad objetiva. Por último, se tiene la encomienda científica de solo realizar una aportación objetiva de los acontecimientos actuales y probabilidades que pueden surgir al transcurso del tiempo en materia de la ciencia neurojuridica a nivel mundial.
Discoveries in fundamental neuroscience are increasingly driving the development of innovative, rationally designed therapies in medicine. Collaborative efforts led by a consortium of researchers forming the Human Connectome Project have created highly accurate, high-resolution maps of human brain circuitry, fundamentally advancing our models of brain function from simplistic localization to dynamic coordination of whole-brain circuits. Increasing knowledge of brain circuitry, combined with development of tools to safely modulate brain activity, has given rise to the new field of interventional psychiatry. Rationally designed, circuit-based therapies utilizing deep brain stimulation (DBS) and transcranial magnetic stimulation (TMS) show great promise in treating treatment-resistant depression and obsessive-compulsive disorder (OCD). Development is proceeding rapidly in identifying new targets to treat other conditions, including post-traumatic stress disorder (PTSD) and substance use disorders. Looking forward, the future of clinical neuroinnovation is bright. Medicine will benefit from current rich research pipelines developing increasingly precise and safe methods for neuromodulation, for example, focused ultrasound with nanoparticles. The increasing effectiveness, safety, and precision of therapeutic neuromodulation will at some point undoubtedly raise ethical issues related to neurodiversity and neuroenhancement.KeywordsNeuroscienceNeuroinnovationHuman connectome projectInterventional psychiatryTranscranial magnetic stimulation (TMS)Deep brain stimulation (DBS)Focused UltrasoundNanoparticlesNeuroethicsNeuroenhancementNeurodiversity
This chapter argues that the notion of human dignity provides an overarching normative framework for assessing the ethical and legal acceptability of emerging technologies in the life sciences. After depicting the increasing duality that characterizes modern technologies, this chapter examines two different meanings of human dignity: the classical meaning that refers to the inherent worth of every individual, and the more recent understanding of this notion that refers to the integrity and identity of humankind, including future generations. The close connection between human dignity and human rights is outlined, as well as the key-role of dignity in international human rights law, and very especially in the human rights instruments relating to bioethics. The chapter concludes by briefly presenting the unprecedented challenges to human dignity and freedom posed by neurotechnologies and germline gene editing technologies, and the need for specific legal provisions in these areas.
Neurotechnologies—neuroimaging, brain stimulation, neuroprosthetics, brain-computer interfaces, optogenetics—are fairly new, but they are likely to progress rapidly and become increasingly widespread. These technologies are being developed primarily for medical purposes; however, applications in other fields are already under way. Intervening in brain functioning can have major implications for our free will and our autonomy. However, the effects are not unequivocal. Some techniques and some of their uses may increase our freedom, while other techniques and other uses may limit it. In this chapter, I propose an operationalised definition of free will and autonomy that is functional for the following discussion. Second, I briefly present some neurotechnologies and their current and future uses. Finally, I focus on the ethical, social and individual welfare evaluation of some neurotechnologies and their possible uses with regard to free will and autonomy.KeywordsControlNeurostimulationOptogeneticsMemoryPolitics
Current advances in neurotechnology are allowing the gradual decoding of neural information at the basis of a number of conscious mental states with unprecedented level of accuracy. Such developments, it is suggested, might give scientists the possibility to ‘read minds’, opening the debate about how to protect mental privacy, that is, the control that subjects have over the access to their own neural data and all relevant information about their mental processes and states that can be obtained by analyzing such data. In this chapter, we oppose those that deny the urgent need for a current discussion of this issue, offering some arguments to motivate and inform the debate. Finally, we examine some of the problems contained in the organic approach to mental privacy, namely, the idea that neural data should be protected by the laws for organ transplantation and donation.KeywordsMental privacyNeuroprotectionNeurotechnologiesNeurorights
In this chapter, I focus on defining freedom of thought and conscience (Section “New Threats to Freedom of Thought and Conscience”) and the new neuroscientific technologies and devices apt to read our mind/brain (Sect. “Neuroscience Crossing the Final Frontier”). In Sect. “New Technologies that Influence Cognitive Processes and Mental Contents”, I explain how digital technologies and devices can influence cognitive processes and mental contents. When exposed to similar stimuli, the “common brain” of human beings may end up becoming very similar among individuals. In this sense, digital technology might be not as neutral as it looks. In Sect. “The Need for and Right to Cognitive Freedom”, I provide a definition of mental integrity and argue why there is a need for a right to cognitive freedom. In Sect. “Using Technology as a Defence Against Technology Itself”, I maintain that we should defend mental integrity by incorporating functional limitations into devices capable of interfering with it.
The paper is a critical review of the latest bills submitted to the Chilean Congress to legislate on so-called neuro-rights. The main purpose is to prove that, camouflaged behind philosophical and scientific simplifications, the bills lack the minimum justification requirements given by the Legisprudential theory. The idea of "neuro-rights" is based on an outdated "Cartesian reductionist" philosophical thesis, which advocates the need to create new rights in order to shield a specific part of the human body: the brain. Such legislation would obviously be redundant as the integrity of the human being (as a whole) is already safeguarded by the long-standing rights to privacy and to mental and physical integrity, which are part of most Western legislation.
Are the cognitive sciences relevant for law? How do they influence legal theory and practice? Should lawyers become part-time cognitive scientists? The recent advances in the cognitive sciences have reshaped our conceptions of human decision-making and behavior. Many claim, for instance, that we can no longer view ourselves as purely rational agents equipped with free will. This change is vitally important for lawyers, who are forced to rethink the foundations of their theories and the framework of legal practice. Featuring multidisciplinary scholars from around the world, this book offers a comprehensive overview of the emerging field of law and the cognitive sciences. It develops new theories and provides often provocative insights into the relationship between the cognitive sciences and various dimensions of the law including legal philosophy and methodology, doctrinal issues, and evidence.
Talking about neuroscience and law today no longer seems futuristic or bizarre. On the contrary it is the representation of a new sector of research, concisely referred to as neurolaw, that flourishes around the integration between two fields each characterized by a high complexity and stratification of elements, theories, links with other scientific fields. Neurolaw was born as a “branch” of bioethical and bio-juridical reflection but now it has become an autonomous sector based on an extensive spectrum of transversal and integrated knowledge. It is a work in progress whose thematic area goes from the traditional phases of the trial and of ‘law in action’ to the frontiers still to be explored of artificial intelligence. This paper tries to make a critical summary of the implications and problems that modern neuroscientific acquisitions pose to the legal dimension, starting from the fundamental theme of responsibility to the controversial perspectives opened by modern techniques of neuroenhancement and brain computer interfaces.
To lose freedom of thought (FoT) is to lose our dignity, our democracy and our very selves. Accordingly, the right to FoT receives absolute protection under international human rights law. However, this foundational right has been neither significantly developed nor often utilized. The contours of this right urgently need to be defined due to twenty-first century threats to FoT posed by new technologies. As such, this paper draws on law and psychology to consider what the right to FoT should be in the twenty-first century. After discussing contemporary threats to FoT, and recent developments in our understanding of thought that can inform the development of the right, this paper considers three elements of the right; the rights not to reveal one's thoughts, not to be penalized for one's thoughts, and not to have one's thoughts manipulated. The paper then considers, for each element, why it should exist, how the law currently treats it, and challenges that will shape it going forward. The paper concludes that the law should develop the right to FoT with the clear understanding that what this aims to secure is mental autonomy. This process should hence begin by establishing the core mental processes that enable mental autonomy, such as attentional and cognitive agency. The paper argues that the domain of the right to FoT should be extended to include external actions that are arguably constitutive of thought, including internet searches and diaries, hence shielding them with absolute protection. It is stressed that law must protect us from threats to FoT from both states and corporations, with governments needing to act under the positive aspect of the right to ensure societies are structured to facilitate mental autonomy. It is suggested that in order to support mental autonomy, information should be provided in autonomy-supportive contexts and friction introduced into decision making processes to facilitate second-order thought. The need for public debate about how society wishes to balance risk and mental autonomy is highlighted, and the question is raised as to whether the importance attached to thought has changed in our culture. The urgency of defending FoT is re-iterated.
When it becomes available, neuroscience-based apprehension of subjective thoughts is bound to have a profound impact on several areas of society. One of these areas is medicine. In principle, medical specialties that are primarily concerned with mind and brain are most likely to apply neurotechnological thought apprehension (NTA) techniques. Psychiatry is such a specialty, and the relevance of NTA developments for psychiatry has been recognized. In this article, I discuss ethical issues regarding the use of NTA techniques in psychiatric contexts. First, I consider the notion of neurotechnological “thought apprehension,” as well as some limitations of present-day NTA applications. Next, I identify ethical priorities for its possible future use in psychiatry. The topics I explore concern key (bio)ethical issues: confidentiality, trust and distrust, consent and coercion, and, finally, responsibility. I conclude that mental health-related use of NTA entails some specific ethical concerns that deserve careful attention before introducing these technologies in psychiatric practice.
Neuroscience is developing constantly and improves neuroimaging technologies which can acquire brain related information, such as (f)MRI, EEG and PET. These technologies could be very useful to answering crucial legal questions in a criminal law context. However, not all defendants and convicted persons are likely to cooperate with these technologies, and as a consequence the possibility of coercive use of these technologies is an important issue. The use of coercive neuroimaging technologies in criminal law, however, raises serious legal questions regarding European human rights. For instance, how does such coercive use relate to the prohibition of torture, inhuman and degrading treatment (‘ill-treatment’, Article 3 European Convention on Human Rights)? This chapter describes four neuroimaging applications and explains how they could contribute to materializing the aims of criminal law. Furthermore, it conceptualizes two types of coercion with which neuroimaging can be applied and explains why that distinction is relevant in this context. Finally, it explores the legal implications of coercive neuroimaging in the context of the prohibition of ill-treatment.
One of the early concerns regarding the use of neuroscience data in criminal trials is that even if the brain images are ambiguous or inconclusive, they still might influence a jury in virtue of the fact that they appear easy to understand. By appearing visually simple, even though they are really statistically constructed maps with a host of assumptions built into them, a lay jury or a judge might take brain scans to be more reliable or relevant than they actually are. Should courts exclude brain scans for being more prejudicial than probative? Herein, we rehearse a brief history of brain scans admitted into criminal trials in the United States, then describe the results of a recent analysis of appellate court decisions that referenced 1 or more brain scans in the judicial decision. In particular, we aim to explain how courts use neuroscience imaging data: Do they interpret the data correctly? Does it seem that scans play an oversized role in judicial decision‐making? And have they changed how criminal defendants are judged? It is our hope that in answering these questions, clinicians and defence attorneys will be able to make better informed decisions regarding about how to manage those incarcerated.
Background
As a discipline, neuroethics addresses a range of questions and issues generated by basic neuroscientific research (inclusive of studies of putative neurobiological processes involved in moral and ethical cognition and behavior), and its use and meanings in the clinical and social spheres. Here, we present Part 4 of a four-part bibliography of the neuroethics literature focusing on clinical and social applications of neuroscience, to include: the treatment-enhancement discourse; issues arising in neurology, psychiatry, and pain care; neuroethics education and training; neuroethics and the law; neuroethics and policy and political issues; international neuroethics; and discourses addressing "trans-" and "post-" humanity.
Methods
To complete a systematic survey of the literature, 19 databases and 4 individual open-access journals were employed. Searches were conducted using the indexing language of the U.S. National Library of Medicine (NLM). A Python code was used to eliminate duplications in the final bibliography.
Results
When taken with Parts 1-3, this bibliography aims to provide a listing of international peerreviewed papers, books, and book chapters published from 2002 through 2016. While seeking to be as comprehensive as possible, it may be that some works were inadvertently and unintentionally not included. We therefore invite commentary from the field to afford completeness and contribute to this bibliography as a participatory work-in-progress.
Brain fingerprinting (BF) detects concealed information stored in the brain by measuring brainwaves. A specific EEG event-related potential, a P300-MERMER, is elicited by stimuli that are significant in the present context. BF detects P300-MERMER responses to words/pictures relevant to a crime scene, terrorist training, bomb-making knowledge, etc. BF detects information by measuring cognitive information processing. BF does not detect lies, stress, or emotion. BF computes a determination of "information present" or "information absent" and a statistical confidence for each individual determination. Laboratory and field tests at the FBI, CIA, US Navy and elsewhere have resulted in 0% errors: no false positives and no false negatives. 100% of determinations made were correct. 3% of results have been "indeterminate." BF has been applied in criminal cases and ruled admissible in court. Scientific standards for BF tests are discussed. Meeting the BF scientific standards is necessary for accuracy and validity. Alternative techniques that failed to meet the BF scientific standards produced low accuracy and susceptibility to countermeasures. BF is highly resistant to countermeasures. No one has beaten a BF test with countermeasures, despite a $100,000 reward for doing so. Principles of applying BF in the laboratory and the field are discussed.
Discusses legal and methodological issues relevant to the admissibility of polygraph tests in the courtroom. It is argued that polygraph tests could offer a much needed and potentially useful forensic tool to the criminal justice system. Polygraph tests appear to meet the requirement of legal form of evidence. The widespread exclusion of polygraph tests appears to lie in a continued distrust of the polygraph based on concerns about logical relevance. The polygraph profession might improve its image with the courts by standardizing its techniques and raising the quality of its examiner training. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
Basic and clinical studies demonstrate that depression is associated with reduced size of brain regions that regulate mood
and cognition, including the prefrontal cortex and the hippocampus, and decreased neuronal synapses in these areas. Antidepressants
can block or reverse these neuronal deficits, although typical antidepressants have limited efficacy and delayed response
times of weeks to months. A notable recent discovery shows that ketamine, a N-methyl-d-aspartate receptor antagonist, produces rapid (within hours) antidepressant responses in patients who are resistant to typical
antidepressants. Basic studies show that ketamine rapidly induces synaptogenesis and reverses the synaptic deficits caused
by chronic stress. These findings highlight the central importance of homeostatic control of mood circuit connections and
form the basis of a synaptogenic hypothesis of depression and treatment response.
Maps representing the preference of neurons for the location and orientation of a stimulus on the visual field are a hallmark of primary visual cortex. It is not yet known how these maps develop and what function they play in visual processing. One hypothesis postulates that orientation maps are initially seeded by the spatial interference of ON- and OFF-center retinal receptive field mosaics. Here we show that such a mechanism predicts a link between the layout of orientation preferences around singularities of different signs and the cardinal axes of the retinotopic map. Moreover, we confirm the predicted relationship holds in tree shrew primary visual cortex. These findings provide additional support for the notion that spatially structured input from the retina may provide a blueprint for the early development of cortical maps and receptive fields. More broadly, it raises the possibility that spatially structured input from the periphery may shape the organization of primary sensory cortex of other modalities as well.
In the study of aggression, psychopathy represents a disorder that is of particular interest because it often involves aggression which is premeditated, emotionless, and instrumental in nature; this is especially true for more serious types of offenses. Such instrumental aggression is aimed at achieving a goal (e.g., to obtain resources such as money, or to gain status). Unlike the primarily reactive aggression observed in other disorders, psychopaths appear to engage in aggressive acts for the purpose of benefiting themselves. This is especially interesting in light of arguments that psychopathy may represent an alternative life-history strategy that is evolutionarily adaptive; behaviors such as aggression, risk-taking, manipulation, and promiscuous sexual behavior observed in psychopathy may be means by which psychopaths gain advantage over others. Recent neurobiological research supports the idea that abnormalities in brain regions key to emotion and morality may allow psychopaths to pursue such a strategy—psychopaths may not experience the social emotions such as empathy, guilt, and remorse that typically discourage instrumentally aggressive acts, and may even experience pleasure when committing these acts. Findings from brain imaging studies of psychopaths may have important implications for the law.
Considerable information about mental states can be decoded from noninvasive measures of human brain activity. Analyses of brain activity patterns can reveal what a person is seeing, perceiving, attending to, or remembering. Moreover, multidimensional models can be used to investigate how the brain encodes complex visual scenes or abstract semantic information. Such feats of "brain reading" or "mind reading," though impressive, raise important conceptual, methodological, and ethical issues. What does successful decoding reveal about the cognitive functions performed by a brain region? How should brain signals be spatially selected and mathematically combined to ensure that decoding reflects inherent computations of the brain rather than those performed by the decoder? We highlight recent advances and describe how multivoxel pattern analysis can provide a window into mind-brain relationships with unprecedented specificity, when carefully applied. However, as brain-reading technology advances, issues of neuroethics and mental privacy will be important to consider.
A wealth of neuroscientific evidence indicates that our brains respond differently to previously encountered than to novel stimuli. There has been an upswell of interest in the prospect that functional MRI (fMRI), when coupled with multivariate data analysis techniques, might allow the presence or absence of individual memories to be detected from brain activity patterns. This could have profound implications for forensic investigations and legal proceedings, and thus the merits and limitations of such an approach are in critical need of empirical evaluation. We conducted two experiments to investigate whether neural signatures of recognition memory can be reliably decoded from fMRI data. In Exp. 1, participants were scanned while making explicit recognition judgments for studied and novel faces. Multivoxel pattern analysis (MVPA) revealed a robust ability to classify whether a given face was subjectively experienced as old or new, as well as whether recognition was accompanied by recollection, strong familiarity, or weak familiarity. Moreover, a participant's subjective mnemonic experiences could be reliably decoded even when the classifier was trained on the brain data from other individuals. In contrast, the ability to classify a face's objective old/new status, when holding subjective status constant, was severely limited. This important boundary condition was further evidenced in Exp. 2, which demonstrated that mnemonic decoding is poor when memory is indirectly (implicitly) probed. Thus, although subjective memory states can be decoded quite accurately under controlled experimental conditions, fMRI has uncertain utility for objectively detecting an individual's past experiences.
William Hazlitt (1778-1830), a British writer, once
asserted that, ‘‘life is the art of being deceived.’’
Human social relations are so steeped in deception
that it is impossible to imagine life without it. From
great drama sweeping one away momentarily to
interleaved complex romantic relationships, the
joining of humans is cemented in place by deception. The basis of who we are (or aren’t) in relation
to others is often predicated on falsification such
that all moral, legal, and ethical systems must take
account of this core feature of human nature. Some
researchers have gone so far as to postulate that
human brains are innately primed to deceive, since
deception is recorded in all societies, extending back
to the earliest written record, and it occurs early in
life in a predictable manner. Given the appropriate
abstract reasoning skills, along with basic social
abilities, human brains quickly discover that rewards outweigh the costs associated with deception.
It is therefore an important task of social neuroscience to reveal the inner workings of deception.
Functional Magnetic Resonance Imaging ("fMRI") technology produces a fourdimensional map of brain activity, such as perception, memory, emotion, and movement. fMRI scans track the flow of blood to the various regions of the brain in real time and reveal the subject's response to particular stimulus. For example, an fMRI scan might reveal blood flow to a subject's memory center in response to a picture of the house in which she was raised. On the one hand, this technology seems to produce a model of a physical attribute and offer insight into the workings of the human brain. On the other, fMRI scans seem to read our minds and disclose our thoughts. The full range of applications of fMRI technology is just emerging, but proponents have already sought its admission in court as a type of lie detector or credibility builder. If fMRI scans are incorporated into the government's investigatory process, constitutional safeguards should be in place to protect the fundamental right of privacy and an individual's freedom to decide whether to assist the state. This Note proposes that the results of fMRI scans are testimonial evidence: first, because the scans reveal the subject's knowledge or beliefs, and second, because this classification ensures that fMRI scan results are afforded the protection of the Fifth Amendment. If fMRI scans are privileged under the Fifth Amendment, the government cannot compel an individual to submit to the scan and reveal the contents of her mind.
Overview: This chapter reviews the use of the P300 ERP in the detection of concealed information since the first published papers in the late 1980s. First, there is a description of P300 as a cortical signal of the recognition of meaningful information. This attribute was applied directly to concealed information detection in the first P300-based CIT protocol called the “three stimulus protocol.” There follows a detailed discussion and review of the methods of analysis used to determine guilt or innocence with the P300, as well as the major papers using and extending the three stimulus protocol in areas beyond those reported in the first publications. This discussion closes with the problematic findings showing that the P300-based, three stimulus protocol is vulnerable to countermeasures. The author's theoretical efforts to understand countermeasure vulnerability with this protocol are then described, followed by an introduction of the theoretically based novel protocol (called the Complex Trial Protocol or CTP) developed to resist countermeasures to P300-based CITs. The use of the CTP in detecting self-referring as well as incidentally acquired information (e.g., in a mock crime scenario) are described, as well as its recent use in detection of details of planned acts of terror prior to actual criminal acts. The use of reaction time as well as a novel ERP component called P900 for detecting countermeasures is also described. The chapter concludes with some caveats about remaining research issues.
Magnetic resonance imaging (MRI) scanners can produce noise measuring over 130 dB SPL. This noise stimulates the auditory nervous system, limiting the dynamic range for stimulus driven activity in functional MRI (fMRI) experiments and can influence other brain functions. Even for structural scans it causes subject anxiety and discomfort in addition to the impediment to communications. Here we describe the realization and validation of a sound system for sound presentation inside an MRI scanner and the modifications to a standard active noise control technique for use in the noisy and compact environment of the scanner. This paper provides a review of the technology available for the presentation of audio stimuli in an MRI environment and the modifications required for the active control of scanner noise. Some of the content has been previously published [Chambers J, Akeroyd MA, Summerfield AQ, Palmer AR. Active control of the volume acquisition noise in functional magnetic resonance imaging: method and psychoacoustical evaluation. J Acoust Soc Am 2001;110(6):3041–54; Levitt H. Transformed up–down methods in psychoacoustics. J Acoust Soc Am 1971;49:467–77], but this paper goes further in describing the stages of development as the system performance was optimised. The performance of the system and both the objective and subjective reduction of the scanner noise are reported. Finally, we discuss recent improvements to the system that are currently being evaluated and describe the theory of opto-acoustical transducers that operate on the principle of light modulation. These are immune from, and do not create, electro-magnetic interference (EMI) and radio-frequency interference (RFI).
The Self-Incrimination Clause of the Fifth Amendment is an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights. From the beginning it lacked an easily identifiable rationale; in 1789, the words of the clause were more a slogan than a clearly defined legal rule, and in the preceding four centuries the slogan had stood for at least four different ideas. Today, things are no better: the clause continues to confound and confuse. Because courts and commentators have been unable to deduce what the privilege is for, they have failed to define its scope in the most logical and sensible way. In this article we try our hand at solving the riddle and untying the Gordian knot. We propose both a rationale for, and a definition of the proper scope of, the Self-Incrimination Clause.
This paper suggests on conceptual and empirical grounds that at present neuroscience does not have a large contribution to make to criminal justice doctrine, adjudication and policy and to law generally despite the great advances in the science. Irrational exuberance and overclaims about the relevance should be avoided. It also explains why the new neuroscience does not present a radical challenge to current legal conceptions of agency and responsibility. Although present caution is warranted, the paper concludes that in the near and intermediate term, as the science advances, neuroscience might well make helpful contributions to the law.
Functional magnetic resonance imaging (fMRI) is currently the mainstay of neuroimaging in cognitive neuroscience. Advances in scanner technology, image acquisition protocols, experimental design, and analysis methods promise to push forward fMRI from mere cartography to the true study of brain organization. However, fundamental questions concerning the interpretation of fMRI data abound, as the conclusions drawn often ignore the actual limitations of the methodology. Here I give an overview of the current state of fMRI, and draw on neuroimaging and physiological data to present the current understanding of the haemodynamic signals and the constraints they impose on neuroimaging data interpretation.
The author reviews the existing research on deception detection, focusing especially on the recent literature. The author offers some insights into why controversy persists in this field and why the state of knowledge remains primitive—even though polygraph testing has been with us for most of the last century. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
Background:
To evaluate the literature pertaining to the use of resting-state functional magnetic resonance imaging (fMRI) in Major Depression (MD).
Methods:
A search for papers published in English was conducted using MedLine, Embase, PsycINFO, OvidSP, and ScienceDirect with the following words: resting state, depression, MRI, affective, and default-mode.
Results:
The findings from 16 resting-state fMRI studies on MD are tabulated. Some common findings are discussed in further detail.
Conclusion:
The use of resting-state fMRI in MD research has yielded a number of significant findings that provide the basis for understanding the pathophysiology of depressive symptoms. Of particular note and deserving of further research are the roles of the cortico-limbic mood regulating circuit (MRC) and the interaction between task-positive and task-negative networks in MD. There is increasing interest in the use of resting-state fMRI in the study of psychiatric conditions, and continued improvement in technique and methodology will prove valuable in future research.
We asked if increased awareness of deception enhanced P300-based detection of concealed information with two groups: 1) Control subjects saw a randomized series of either rare probes (subject home towns), frequent irrelevants (other towns), and rare targets, which are irrelevant stimuli but requiring Button 1 responses. Probes and non-target irrelevants required Button 2 responses. Controls were told to be sure they performed target/non-target discrimination correctly, and were so reminded throughout the run. 2) Deception subjects received an identical stimulus series and response instructions, but were also alerted about their deception (pressing a non-recognition button to probes) before and throughout the run. The deception group had significantly greater differences between probe and irrelevant P300s than controls, as well as significantly greater individual detections (10/10) than did controls (5/10), suggesting that the deception awareness manipulation enhances test sensitivity.
Psychopaths commit a disproportionate amount of violent crime, and this places a substantial economic and emotional burden on society. Elucidation of the neural correlates of psychopathy may lead to improved management and treatment of the condition. Although some methodological issues remain, the neuroimaging literature is generally converging on a set of brain regions and circuits that are consistently implicated in the condition: the orbitofrontal cortex, amygdala, and the anterior and posterior cingulate and adjacent (para)limbic structures. We discuss these findings in the context of extant theories of psychopathy and highlight the potential legal and policy implications of this body of work.
The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders provides the authoritative list of what are considered to be mental disorders. This list has a tremendous impact on research, funding, and treatment, as well as a variety of civil and forensic decisions. The development of this diagnostic manual is an enormous responsibility. Provided herein are lessons learned during the course of the development of the fourth edition. Noted in particular is the importance of obtaining and publishing critical reviews, restraining the unbridled creativity of experts, conducting field trials that address key issues and concerns, and conducting forthright risk-benefit analyses. It is suggested that future editions of the diagnostic manual be developed under the auspices of the Institute of Medicine. The goal would be broad representation, an evidence-based approach, disinterested recommendations, and a careful attention to the risks and benefits of each suggestion for change to the individual patient, to public policy, and to forensic applications.
Quantitative modeling of human brain activity can provide crucial insights about cortical representations [1, 2] and can form the basis for brain decoding devices [3-5]. Recent functional magnetic resonance imaging (fMRI) studies have modeled brain activity elicited by static visual patterns and have reconstructed these patterns from brain activity [6-8]. However, blood oxygen level-dependent (BOLD) signals measured via fMRI are very slow [9], so it has been difficult to model brain activity elicited by dynamic stimuli such as natural movies. Here we present a new motion-energy [10, 11] encoding model that largely overcomes this limitation. The model describes fast visual information and slow hemodynamics by separate components. We recorded BOLD signals in occipitotemporal visual cortex of human subjects who watched natural movies and fit the model separately to individual voxels. Visualization of the fit models reveals how early visual areas represent the information in movies. To demonstrate the power of our approach, we also constructed a Bayesian decoder [8] by combining estimated encoding models with a sampled natural movie prior. The decoder provides remarkable reconstructions of the viewed movies. These results demonstrate that dynamic brain activity measured under naturalistic conditions can be decoded using current fMRI technology.
Over the last 20 years, fMRI has revolutionized cognitive neuroscience. Here I outline a vision for what the next 20 years of fMRI in cognitive neuroscience might look like. Some developments that I hope for include increased methodological rigor, an increasing focus on connectivity and pattern analysis as opposed to "blobology", a greater focus on selective inference powered by open databases, and increased use of ontologies and computational models to describe underlying processes.
Over the past decade fMRI researchers have developed increasingly sensitive techniques for analyzing the information represented in BOLD activity. The most popular of these techniques is linear classification, a simple technique for decoding information about experimental stimuli or tasks from patterns of activity across an array of voxels. A more recent development is the voxel-based encoding model, which describes the information about the stimulus or task that is represented in the activity of single voxels. Encoding and decoding are complementary operations: encoding uses stimuli to predict activity while decoding uses activity to predict information about the stimuli. However, in practice these two operations are often confused, and their respective strengths and weaknesses have not been made clear. Here we use the concept of a linearizing feature space to clarify the relationship between encoding and decoding. We show that encoding and decoding operations can both be used to investigate some of the most common questions about how information is represented in the brain. However, focusing on encoding models offers two important advantages over decoding. First, an encoding model can in principle provide a complete functional description of a region of interest, while a decoding model can provide only a partial description. Second, while it is straightforward to derive an optimal decoding model from an encoding model it is much more difficult to derive an encoding model from a decoding model. We propose a systematic modeling approach that begins by estimating an encoding model for every voxel in a scan and ends by using the estimated encoding models to perform decoding.
Abstract Previous studies examining the P300-based concealed information test typically tested for mock crime or autobiographical details, but no studies have used this test in a counterterrorism scenario. Subjects in the present study covertly planned a mock terrorist attack on a major city. They were then given three separate blocks of concealed information testing, examining for knowledge of the location, method, and date of the planned terrorist attack, using the Complex Trial Protocol (Rosenfeld et al., 2008). With prior knowledge of the probe items, we detected 12/12 guilty subjects as having knowledge of the planned terrorist attack with no false positives among 12 innocent subjects. Additionally, we were able to identify 10/12 subjects and among them 20/30 crime-related details with no false positives using restricted a priori knowledge of the crime details, suggesting that the protocol could potentially identify future terrorist activity.
To review past, present and future applications of near-infrared spectroscopy (NIRS) in clinical neuroscience.
The literature and personal experience of the authors were critically reviewed in order to provide a balanced overview of the basic principles, clinical validation, previous experience and current use of NIRS in assessment of cerebral oxygenation in clinical neuroscience.
Recent technological advancements in transcranial cerebral oximetry (TCCO) are opening up a new promising avenue in clinical neuroscience. With its non-invasive nature, high reliability and uniqueness of gathered data, NIRS represents a very special modality in the neuroscience intensive care unit, angiography suite and the operating room. The hurdles of using this technology in clinical practice are discussed in detail. In addition, we evaluate some known limitations of NIRS and current controversies around its use. Lastly, several commercially available cerebral oximeters are presented.
Despite remarkable developments in the NIRS technology and proven reliability of the cerebral oxygenation monitoring approach, TCCO remains mostly an adjuvant tool for neuroscience applications. Newer NIRS technologies have become a source of quantitative information about brain oxygenation, cerebral blood volume and flow. However, the clinical significance of this new information in the context of clinical neuroscience will need to be determined and further validation studies will need to be performed.
What makes people behave honestly when confronted with opportunities for dishonest gain? Research on the interplay between controlled and automatic processes in decision making suggests 2 hypotheses: According to the "Will" hypothesis, honesty results from the active resistance of temptation, comparable to the controlled cognitive processes that enable the delay of reward. According to the "Grace" hypothesis, honesty results from the absence of temptation, consistent with research emphasizing the determination of behavior by the presence or absence of automatic processes. To test these hypotheses, we examined neural activity in individuals confronted with opportunities for dishonest gain. Subjects undergoing functional magnetic resonance imaging (fMRI) gained money by accurately predicting the outcomes of computerized coin-flips. In some trials, subjects recorded their predictions in advance. In other trials, subjects were rewarded based on self-reported accuracy, allowing them to gain money dishonestly by lying about the accuracy of their predictions. Many subjects behaved dishonestly, as indicated by improbable levels of "accuracy." Our findings support the Grace hypothesis. Individuals who behaved honestly exhibited no additional control-related activity (or other kind of activity) when choosing to behave honestly, as compared with a control condition in which there was no opportunity for dishonest gain. In contrast, individuals who behaved dishonestly exhibited increased activity in control-related regions of prefrontal cortex, both when choosing to behave dishonestly and on occasions when they refrained from dishonesty. Levels of activity in these regions correlated with the frequency of dishonesty in individuals.
For over 200 years, Western courts have considered pleas of "not guilty by reason of insanity" (NGRI) for defendants in possession of a mental defect rendering them unable to understand the wrongfulness of their act. Until recently, determining the mental state of a defendant has fallen largely upon the shoulders of court psychologists and experts in psychiatry for qualitative assessments related to NGRI pleas and mitigation at sentencing. However, advances in neuroscience--particularly neurological scanning techniques such as magnetic resonance imaging (MRI), functional magnetic resonance imaging (fMRI), computed tomography scanning (CT), and positron emission tomography scanning (PET)--may provide additional, pertinent biological evidence as to whether an organically based mental defect exists. With increasing frequency, criminal defense attorneys are integrating neuroimaging data into hearings related to determinations of guilt and sentencing mitigation. This is of concern, since not all brain lesions and abnormalities indicate a compromised mental state that is relevant to knowing whether the act was wrong at the time of commission, and juries may be swayed by neuroscientific evidence that is not relevant to the determination of the legal question before them. This review discusses historical and modern cases involving the intersection of brain lesions and criminality, neuroscientific perspectives of how particular types of lesions may contribute to a legally relevant mental defect, and how such evidence might best be integrated into a criminal trial.
Morphometric studies of immature cerebral cortex in humans show developmental changes extending up to the time of adolescence. Growth of dendrites and of synaptic connections occurs during infancy and early childhood. Excess synaptic connections are eliminated during later childhood years. The exuberant connections that occur during infancy may form the anatomical substrate for neural plasticity and for certain types of early learning.
What happens in the brain when you conjure up a mental image in your mind's eye? We tested whether the particular regions of extrastriate cortex activated during mental imagery depend on the content of the image. Using functional magnetic resonance imaging (fMRRI), we demonstrated selective activation within a region of cortex specialized for face perception during mental imagery of faces, and selective activation within a place-selective cortical region during imagery of places. In a further study, we compared the activation for imagery and perception in these regions, and found greater response magnitudes for perception than for imagery of the same items. Finally, we found that it is possible to determine the content of single cognitive events from an inspection of the fMRI data from individual imagery trials. These findings strengthen evidence that imagery and perception share common processing mechanisms, and demonstrate that the specific brain regions activated during mental imagery depend on the content of the visual image.
The rapidly growing field of cognitive neuroscience holds the promise of explaining the operations of the mind in terms of the physical operations of the brain. Some suggest that our emerging understanding of the physical causes of human (mis)behaviour will have a transformative effect on the law. Others argue that new neuroscience will provide only new details and that existing legal doctrine can accommodate whatever new information neuroscience will provide. We argue that neuroscience will probably have a transformative effect on the law, despite the fact that existing legal doctrine can, in principle, accommodate whatever neuroscience will tell us. New neuroscience will change the law, not by undermining its current assumptions, but by transforming people's moral intuitions about free will and responsibility. This change in moral outlook will result not from the discovery of crucial new facts or clever new arguments, but from a new appreciation of old arguments, bolstered by vivid new illustrations provided by cognitive neuroscience. We foresee, and recommend, a shift away from punishment aimed at retribution in favour of a more progressive, consequentialist approach to the criminal law.
To date, the diagnosis of mental disorders has been based on clinical observation, specifically: the identification of symptoms that tend to cluster together, the timing of the symptoms' appearance, and their tendency to resolve, recur or become chronic. The Diagnostic and Statistical Manual of Mental Disorders and the International Classification of Disease, the manuals that specify these diagnoses and the criteria for making them, are currently undergoing revision. It is thus timely to ask whether neuroscience has progressed to the point that the next editions of these manuals can usefully incorporate information about brain structure and function.
Under the umbrella of the burgeoning neurotransdisciplines, scholars are using the principles and research methodologies of their primary and secondary fields to examine developments in neuroimaging, neuromodulation and psychopharmacology. The path for advanced scholarship at the intersection of law and neuroscience may clear if work across the disciplines is collected and reviewed and outstanding and debated issues are identified and clarified. In this article, I organize, examine and refine a narrow class of the burgeoning neurotransdiscipline scholarship; that is, scholarship at the interface of law and functional magnetic resonance imaging (fMRI).
Can neurological evidence help courts assess criminal responsibility? To answer this question, we must first specify legal criteria for criminal responsibility and then ask how neurological findings can be used to determine whether particular defendants meet those criteria. Cognitive neuroscience may speak to at least two familiar conditions of criminal responsibility: intention and sanity. Functional neuroimaging studies in motor planning, awareness of actions, agency, social contract reasoning, and theory of mind, among others, have recently targeted a small assortment of brain networks thought to be instrumental in such determinations. Advances in each of these areas bring specificity to the problems underlying the application of neuroscience to criminal law.
The question of how the human brain represents conceptual knowledge has been debated in many scientific fields. Brain imaging
studies have shown that different spatial patterns of neural activation are associated with thinking about different semantic
categories of pictures and words (for example, tools, buildings, and animals). We present a computational model that predicts
the functional magnetic resonance imaging (fMRI) neural activation associated with words for which fMRI data are not yet available.
This model is trained with a combination of data from a trillion-word text corpus and observed fMRI data associated with viewing
several dozen concrete nouns. Once trained, the model predicts fMRI activation for thousands of other concrete nouns in the
text corpus, with highly significant accuracies over the 60 nouns for which we currently have fMRI data.