Developed both in research laboratories and private companies, results of neurotechnology have already made their way to the general public, blurring the line between medical and non-medical application of those. This rapid advancement in neurotechnology demands a profound examination of its societal, ethical, and legal implications. Worldwide evolvement of neurotechnology systems rises a fundamental question: What exactly are neurotechnologies, and do we require the establishment of neurorights to safeguard human rights in this evolving landscape?
Advancements in Neurotechnologies and the Ethical Dilemmas
According to the definition established in 2019 by an OECD expert group, which was adopted in the 2021 report of the UNESCO International Bioethics Committee, neurotechnologies encompass all techniques that record brain activity, regardless of the form of such recording (electrical activity, changes in blood flow, etc.), as well as those that modify it. These techniques include both invasive methods, such as high-frequency stimulation, and non-invasive approaches, like transcranial magnetic stimulation. In other words, they encompass all techniques related to the “reading” or “writing” of brain activity. In the medical field, neurotechnologies, including deep brain stimulation, for instance, enable numerous patients to alleviate symptoms of various diseases and conditions. This extends beyond Parkinson’s disease and includes conditions like epilepsy, depression, and obsessive-compulsive disorder, where these technologies offer innovative treatment options. However, these applications are just a few examples among many others and are continually evolving.
While neurotechnologies offer promising opportunities in the medical field, they also raise significant ethical questions. These technologies are intrinsically linked to the brain, an organ unlike any other. Brain activity forms the basis of our identity, cognitive states, thoughts, emotions, and more. However, these technologies open the door to the possibility of accessing this information or even interfering with it. Unlike many other cutting-edge technologies, neurotechnologies have the unique capability to directly access and manipulate the very structure of the brain. As a result, they can generate and manipulate information about our identities, autonomy, emotions, free will, and fears. These techniques can enable developers, both public and private, to exploit cognitive biases and trigger reactions and emotions without consent. Ethical questions arise regarding the protection of mental privacy and safeguarding individuals against the intrusion of third parties into their brain data, as well as unauthorized collection (and sale) of such data.
Neurotechnology has a huge potential to advance biomedicine and healthcare. However, uncertainty exists about the impact and direction of these developments.
Do We Need Neurorights to Ensure Human Rights?
Applications in the field of neurotechnology raise questions related to privacy and freedom. It is, therefore, necessary to assess whether these issues can be adequately addressed within the existing framework of human rights or if it is appropriate to consider new human rights related to mental integrity and individual identity.
While the OECD (2019) and UNESCO (2021) have contributed to raising awareness of the ethical issues surrounding neurotechnologies and have laid the groundwork for further reflection on the necessity of neurorights, there is currently no mandatory governance framework focused on the human brain and the resulting information. While some argue that an existing legal framework related to human rights is sufficient and only needs updating to address potential abuses of neurotechnologies, others believe that the emergence of neurorights is essential. But should neurorights be established to ensure human rights?
The question of introducing new human rights specifically related to neurotechnologies and the protection of cognitive privacy is a complex and debated issue. Advocates for the creation of “neurorights” believe that existing treaties and laws are insufficient to guarantee the protection of brain data and mental privacy in a world increasingly influenced by advances in neuroscience and neurotechnologies. They emphasize that traditional human rights, while valuable, were formulated before the advent of these technologies and do not specifically address the issues related to the monitoring and manipulation of the human brain. Therefore, they argue that it is necessary to create new rights that explicitly address these concerns. According to Professor of Neuroscience Rafael Yuste, new human rights need to be created because cognitive privacy is not adequately guaranteed by existing treaties and the United Nations Charter. This perspective is also championed by Chile, where, in 2021, the Chilean Senate unanimously passed a bill amending the Constitution to protect “brain rights” or “neurorights”, making Chile the first nation to enshrine such rights in its Constitution. On the other hand, there are those who believe that existing human rights, including the freedom of thought, already provide adequate protection. They contend that existing legislation, such as human rights or GDPR in Europe for example, can be adapted to address concerns related to neurotechnologies without the need to create new rights. However, these treaties and laws were written before and outside the context of the development of neurotechnologies, making it necessary to reassess their applicability.
Despite various ongoing discussions, Europe has not yet reached a consensus on how to proceed with neurotechnologies. For many, the absence of a unified legal framework is a significant issue, not only at the global level but also within Europe. One illustrative yet notable example is the introduction of France’s 2011 bioethics law, which prohibits the use of neuroimaging for marketing purposes (as brain imaging techniques can only be used for medical or scientific research purposes, or in the context of judicial expertise). This restriction pertains to employing brain imaging to assess how individuals might react to advertisements, with the aim of enhancing their power of influence. While this practice is banned in France, it remains legal in Belgium. Consequently, some French companies, such as SNCF, turn to Belgian firms to study the impact of their campaigns. Then, while UNESCO and the OECD have issued recommendations in recent years, it’s crucial to remember that these recommendations are considered “soft law“, and many argue that they should be followed by actual laws in individual states to make it uniform.
With neurotechnologies, there are indeed effective medical diagnostics and high-performance treatments. However, alongside these benefits, precautions must be taken to guard against potential abuses. Therefore, innovation is necessary today, but it must be approached responsibly to anticipate and address the various ethical, legal, and social challenges posed by neurotechnologies, all while promoting innovation in the field. One critical aspect to consider is that the pace of innovation in neurotechnology outstrips the political framework for supervising its use. Imposing overly stringent regulations could have adverse effects, as they might restrain potential technological advancements. Thus, it is essential to strike a balance between the current and future applications of these technologies and the protection of customers’ rights.
European Regulations: Balancing Ethical Oversight Without Impacting European Competitiveness and Investments
Neurotechnologies are an incredibly promising sector, attracting substantial investments and offering lucrative returns for both professionals and the general public. These advancements hold significant potential, garnering increasing interest. Funding raised in the NeuroTech sector has been growing at approximately 40% annually since 2013, and this growth has accelerated to around 60% since 2019. It represents a rapidly expanding market full of promises for the future. The United States leads the pack with more frequent and substantial funding rounds (averaging $58 million). Europe, on the other hand, closely follows in terms of investments (averaging $41 million) and the number of companies. These substantial investments in neurotechnologies and the proliferation of companies are democratizing access to these technologies in various sectors. Yet, it raises a fundamental question: Are we prepared to embrace American recreational technologies and, in doing so, permit these companies to utilize our brain data without a well-defined legal framework? Shouldn’t we consider the option of European development, incorporating European standards and values as a more desirable alternative?
As these promises become more attractive and are presented to the public, the risk of potential hazards also escalates. While several ethical guidelines have been drafted as companies venture into the uncharted territory of neurotechnology seeking some guidance, this is far from sufficient. According to Rafael Yuste, “Companies never self-regulate. We’ve seen that over and over again, on the internet, with the metaverse, with social media“. Citing an unpublished analysis from the Neurorights Foundation, which he co-founded, Yuste highlighted that 18 companies offering consumer neurotechnologies have terms and conditions that compel users to relinquish ownership of their brain data to the company. He emphasized that all these companies store all user data, and 16 of them claim the right to sell it to third parties. According to him “this is predatory, and the reason is the absence of regulation“.
The European Union is currently faced with the challenge of defining a clear legal framework. It is evident that Europe must advance this technology to ensure its independence from countries that do not share European democratic values. Slowing down technological progress is inconceivable. Instead, we must promote the development and use of technologies that align with our principles and values. This raises questions of competitiveness. It is imperative to initiate a dialogue with European industries and partners to establish ethical design principles. Given that our understanding of the brain represents only a fraction of its functioning, granting unlimited access to companies would be unreasonable, but excessive regulation would also be counterproductive. Therefore, we must engage in this race because others are already in the field.
As said by the neurobiologist Rafael Yuste in 2022 “We now know how to induce hallucinations in mice by manipulating their cerebral cortex. What we can do in mice today will be possible to do in humans tomorrow”. Understanding and enhancing the human brain and mind is one of the great scientific challenges of our time. Achieving these objectives while upholding justice, fundamental rights, and human dignity is the parallel task of ethics and law. “Neurorights” are likely to be a valuable tool in fulfilling this mission.
See an earlier even report of ours on the subject:
https://c4ep.eu/neurorights-protecting-fundamental-rights-in-the-era-of-neurotechnology/