Where a device is implanted, surgery should not
be performed unless an individual is aware of the
possible consequences of implantation. Legislation
relating to the exercise of decision‑making capacity
in the context of treatment provision must include
necessary safeguards. Where possible less invasive
means of implantation should be utilised where the
same goals can be achieved.
Education is not the only application of
neurotechnology for children. Virtual and
augmented reality systems can also be
supported by brain control for educational and
entertainment purposes.154 With the advent of
immersive technologies, it can be expected that the
interaction of children with neurotechnologies will
only increase.
These examples show that there are serious
risks associated with the medical usage of
neurotechnology for people with disability
(especially those with implanted devices). However,
people with disability will also face similar risks
(noted throughout this discussion paper) especially
in relation to bias and privacy, regardless of
their use of medical or consumer‑oriented
neurotechnologies.
The rights of children
4.2 Children and young people
Young people and children may be especially
vulnerable to any side effects of long‑term use
of neurotechnologies as their minds are still
developing. The best interests of children must be
central to any use of neurotechnology, in alignment
with article 3 of the Convention on the Rights of the
Child (CRC).
Education
Neurotechnologies may be used in the education
sector with the aim of improving concentration in
class and academic performance.
One example of this was a trial conducted in China
where primary school children were required to
wear non‑implantable BCI headsets which recorded
concentration levels during class.151 The collected
neural data was stored on a teacher’s computer and
later shared with parents.152
The UK ICO notes that there is increasing interest in
the use of neurotechnology in the education sector.
It further notes the likelihood in the long‑term (five
to seven years) of the higher education sector using
BCIs to monitor student concentration and stress
levels, and to further improve cognitive processes to
boost student performance.153
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Online privacy and safety measures in respect
of neurotechnology should be developed in
accordance with article 3 of the CRC, which requires
that the ‘best interests’ of the child be a primary
consideration in all actions concerning them. This
is one of the four guiding principles of the CRC
and should be a primary consideration in digital
environments.155
When considering the best interests of the child,
regard should be had to ‘all children’s rights, including
their right to seek, receive and impart information, to
be protected from harm and to have their views given
due weight’, in addition to ensuring transparency over
the criteria applied to determine best interests.156
Where rights are limited to protect children from
online harms, limitations must be lawful, necessary
and proportionate. Maximising children’s privacy
and securing their personal data is itself a ‘crucial
means of acting in their best interests’.157
Children’s privacy should not be construed narrowly
to relate only to data protection measures; and
should recognise the importance of children’s
autonomy and choice over their private lives. As
detailed in part 4 of General Comment 25, digital
service providers, which would extend to providers
of neurotechnology, should be offering services
which are appropriate for children’s evolving
capacities. The risks involved with children’s
engagement with neurotechnology depend heavily
on their age and stage of development and includes
a greater deal of independence from parents
at increasing ages. Designing ‘age appropriate’
neurotechnology should draw upon the best and
most up‑to‑date research available to accommodate
any child regardless of their age or capacity.158
Protecting Cognition: Background Paper on Human Rights and Neurotechnology