2. Introduction to neurotechnology
There has been serious consideration of the
application of neurotechnology in the criminal
justice system. Academics have questioned whether
the police may use neurotechnology to analyse
neural data and make inferences about suspects
and witnesses (such as truthfulness) in their
investigations. Some have gone further and raised
concerns that neurotechnologies may be used in
sentencing and post‑imprisonment conduct:
For example, a closed‑loop device could be
used to monitor the brain of an offender and
intervene upon it in order to avert an angry
outburst that might precipitate an offense.69
Issues such as these have led to a global
discussion on protecting the human mind from
neurotechnology:
Chile has worked to introduce protections
into its national legal system via constitutional
amendment.70
Spain has included ‘neurodata’ specific sections in
its Digital Rights Charter.71
The United Nations, Inter‑American Juridical
Committee and the Council of Europe are all
exploring whether existing human rights and
freedoms provide sufficient legal protection from
neurotechnologies.72
UNESCO has published an initial report on the risks
and challenges of neurotechnologies for human
rights.73 In 2023 it produced a follow up report.
The UK ICO recently published a paper on
neurotechnology.
The UN Human Rights Council has adopted a
resolution to commission the Human Rights
Council to produce a report on neurotechnology
and human rights.
There has also been a suite of ethical guidelines
produced by different bodies globally which act as
‘soft law’ to complement legislative frameworks.74
While there is much discussion surrounding
different neurorights, it is illustrative to consider
mental privacy and mental integrity in further detail.
Mental privacy
Vint Cerf, Vice President and Chief Internet Evangelist
at Google, once stated that ‘privacy may actually
be an anomaly’.75 In a world of heightened data
collection and surveillance, it seems possible that this
statement will increasingly reflect reality as neural
data becomes the next piece of personal data to be
harvested by organisations seeking to monetise it.
Mental privacy refers to the right to private thoughts,
feelings, memories, emotions and neural data.
There is already significant commentary and calls
for legislative reform about how to protect personal
information online,76 which may well extend to a
consideration of the protection of neural data.
Neural data will likely give companies, governments
and other actors the ability to make inferences
about users of neurotechnologies. This could
extend to their predisposition to neurological
and psychiatric conditions or future behaviour.77
Such insights would, in the future, put those with
access to the neural data in a powerful position
to manipulate people either through direct
intervention through neurotechnologies or by
utilising the neural data to push people subversively
towards certain decisions.
It is well known that algorithms can make inferences
about people, and suggest content they are most
likely to engage with.78 While problematic, this
issue will be exacerbated if such tailored content
or ‘nudges’ are made on the basis of neural data in
the future. It has been argued that such breaches of
mental privacy could result in manipulation or even
physical harm to users.79
There is also a risk that a person utilising
neurotechnology could have their device
hacked.80 This raises the emerging possibility of a
neurotechnological device being co‑opted to access or
alter the device or neural information of a user.81 The
risk of ‘hijacking’ a neurotechnological device could
lead to users being exploited, threatened or harmed.
Greater security and protection of private neural
information would go far in addressing such risk.
Australian Human Rights Commission
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