Between 1912 and 1924, the first EEGs of animals and humans were recorded. Later lie detector tests evolved, and now brain imaging is a routine practice. Through the rise of functional magnetic resonance imaging (fMRI), which allows one to measure the brain’s electrical activity, the ability to look into the brain has been enhanced. Brain and neuro-imaging techniques are employed under ‘neurolaw’ to affix responsibility and predict recidivism.
A 2013 study of ex-convicts showed, for instance, that individuals with low activity in their brain’s Anterior Cingulate Cortex, which controls decision making and action, are more likely to commit crimes again: low brain activity in that region translates, for law enforcement, a possible recidivism.
Neural and cognitive interventions are a part and parcel of the drive towards human enhancement, defined as: “Any kind of genetic, biomedical, or pharmaceutical intervention aimed at improving human dispositions, capacities, and well-being, even when there is no pathology to be treated. (Alberto Giubilini and Sagar Sanyal, in The Ethics of Human Enhancement).
Minority Report Scenario
The ‘minority report’ scenario – first enunciated as an amazing futuristic fiction by Philip K Dick, whose another famous text gave us Blade Runner – throws up interesting questions and concerns in the field of bioethics and neuroethics. Three in particular stand out: mental privacy, mental integrity and cognitive liberty.
The right to mental privacy has already been infringed by lie detector tests and other procedures even before neuroimaging. The monitoring of a person’s bodily conditions – speech, eye movement, sweating – as an index of brain activity and even dispositions (such as lying) were preliminary moves to mapping what we think, and how.
When psychotropic drugs were introduced (truth-serums, the stuff of any number of thrillers), they achieved two things: breached the mental integrity barrier and went up a step in brain manipulation and cognitive influencing. The manipulation of neural and brain processes became more prevalent.
Terms like “brainwashing” or “indoctrination” are now literal because with the use of neuropeptids like Oxytocin (called the ‘cuddle hormone’, and now available as sprays) or neuroenhancement drugs, it is possible to alter a person’s decision-making processes.
This brings us to the third component: cognitive liberty. If human rights hinges on the autonomy to make decisions to safeguard one’s dignity and liberty, what happens when the ability to make these decisions is compromised? Even accounting for Libet’s delay (the neurons fire at least half a second before the human subject “decides”, indicating that something in our brains decides before we decide), there is a case for our mental self-determination being open to manipulation. The possibility of coercive and unobtrusive neural interference with our brains gives the phrase “freedom of thought” a very literal and frightening connotation: what can be done with our brains?
Well established doctrines of rights hinge upon one key principle: the sovereignty of the person. Legal and ethics scholars, politicians and general public are alert to the threat to individual and collective sovereignty from enemies. The legal system through multiple measures ensures that the sovereignty of the individual cannot be taken away except through due process. These are, we now understand, all about the sovereignty of the body. To interfere with another’s body, without consent and due process of the law, is a cognisable offence. But what are the safeguards against the interference with our brains and minds (the two are not interchangeable)?
We can think of cognitive liberty being compromised at two levels. First, the everyday manipulation of our thinking via rhetoric, advertisements, lying, deception – all being forms of cognitive interference. For example, the manipulation of Covid mortality and morbidity stats by the government is a clear instance of such a manipulation. Advertisers implant subtle messages, which we are unaware of, in their ads that influence our judgements. The second level is of intentional and unauthorised direct intervention at the level of the synapse and the neuron through pharmacological or other means.
Rise of Cognitive Rights
Scholars such as Jan-Christoph Bublitz have argued that the very notion of the legal subject depends on the subject being aware of her/his mind and being a conscious decision-maker. If the law assumes that persons have the free will to take decisions, it follows that they should have the capability and freedom to self-determination. If bodily sovereignty is a key aspect of being human, then argues Bublitz, so is mental/cognitive sovereignty: ‘The “innate” – not acquired – right of everyone is the right to one’s person, to make use of one’s mental and bodily powers and to remain free from interferences.’
Cognitive rights include the right to change one’s mind, and the right to refuse mind-altering tools. No one, in short, should be forced to enhance, modify or place her/his mind under somebody else’s control. The loss of mental integrity is a potential threat that requires legal measures for the protection of cognitive rights, like any other right.
Now, the individual may choose neuroenhancement. Mood or intellectual enhancement that have potential values in any culture may become an individual’s choice. Balancing the individual’s right to cognitive enhancement or control with the collective’s right is the tricky part. For instance, does the collective have the right to put in place mind or mood-control measures for convicts before they are released? Should memory-enhancing methods be adopted so that eyewitnesses to serious crimes can have full and undiminished recall of what they have seen, to aid the legal apparatus?
It is in this context that ethicists and commentators on human enhancement call for cognitive rights and the right to mental privacy. This right, argue Marcello Ienca and Roberto Andorno in a 2017 essay, “would protect brainwaves not only as data but also as data generators or sources of information… it would cover not only conscious brain data but also data that are not (or are only partly) under voluntary and conscious control… … the right to brain privacy aims to protect people against illegitimate access to their brain information and to prevent the indiscriminate leakage of brain data across the infosphere.”
If we assume that we are our brains, the most important right of the modern era, it will be seen, is cognitive rights.
(The author is Professor, Department of English, University of Hyderabad)
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