Fifteen Eighty Four

Traditionally, the majority of human rights pertain to physical actions and visible objects in the outside world. To a far lesser degree, they protect our internal lives, such as emotions, intentions, memories, and other mental states. Because our internal, mental lives have been conceived inaccessible to the outside world, their legal protection may have seemed unnecessary.

However, in recent years, we have seen considerable progress in neurotechnologies. Some of these technologies, such as functional magnetic resonance imaging (fMRI), computed tomography (CT) and electroencephalography (EEG), make it possible to analyse and examine the brain. Such developments help us to better understand the human brain in health and disease. For example, neurotechnologies appear useful in diagnosing brain disorders, such as epilepsy and certain forms of dementia, and specific brain features appear to correlate with aggressive behaviour. Interestingly, brain-derived data has also enabled researchers to make inferences about individual mental states, such as the identification of recognition and the detection of lying. Because, in a way, researchers in this context are ‘reading’ an individual’s brain, these neurotechnologies are sometimes referred to as neurotechnological ‘brain-reading’.

Many scholars have underlined the potential relevance of brain-reading for criminal justice and much empirical research has been done on forensic use of these techniques, such as brain-based lie and memory detection and the prediction of recidivism and future dangerousness. Moreover, some applications have already been used in criminal proceedings in many countries, including European legal systems such as in England and Wales, the Netherlands, Italy, and Slovenia. This kind of brain-reading has contributed to the determination of guilt, the imposition of sanctions and, most prominently, to the assessment of legal responsibility.

In medicine, patients normally consent to neurotechnology, e.g. to diagnose traumatic brain injury or to identify a brain tumour. In criminal justice, however, defendants and convicted offenders may of be reluctant to cooperate in technologies that can reveal their mental states, since it could jeopardise their interests. At the same time, these technologies could be particularly valuable with respect to uncooperative defendants and offenders who are unwilling to share information. This raises the question of whether it could be legally permissible to apply brain-reading coercively – that is, against the will of the individual. Such use of brain-reading in criminal law creates fundamental legal questions. Much of these questions relate to the human rights protected by the European Convention on Human Rights. One could think of the prohibition of ill-treatment, the right to respect for private life, the right to freedom of thought, the right to freedom of expression, and the privilege against self-incrimination.

Whereas these rights and freedoms establish normative limits to analysing the brain of defendants and offenders with neurotechnology, they are unlikely to completely prohibit all types of non-consensual brain-reading. This raises the question of whether the scope of these existing rights and freedoms suffice to offer adequate protection against non-consensual brain-reading in criminal justice or in other domains, such as the military. Or are we in need of new human rights that are specified to the brain and mind, so-called “neurorights”? Scholars, legislators, and policymakers, including the Council of Europe, UNESCO, and the United Nations, are currently considering the sustainability of human rights to protect brains and minds. In this debate, a variety of disciplines come together, such as neuroscience, ethics, and the law. Whereas the input of experts in all these fields is necessary to examine the sustainability of established human rights in view of emerging neurotechnology, the multidisciplinary character of the debate may also lead to confusion. For example, neuroscientists and ethicists sometimes wrongfully assume certain gaps in the existing framework of human rights, without taking full account of comprehensive legal analyses. Examples are claims of alleged shortcomings in the protection of personal identity and mental privacy, while from a legal point of view, these notions are clearly protected in different forms and through different norms.

When reasonably construed, many established human rights cover potential neurotechnological interventions, especially the rights to privacy, bodily and mental integrity, freedom of thought, freedom of expression, human dignity, and the privilege against self-incrimination. In general, the present human rights framework seems well-positioned to address challenges from neurotechnologies. What needs to be done is to reasonably interpret these rights and specify them to new developments in society and technology, such as to non-consensual brain-reading in criminal justice.