Even where individuals do not genuinely understand
how their data is being used (as will increasingly
be the case as consumer neurotechnologies are
more widely adopted), people will still generally
disapprove of its misuse. Individuals have been
shown to have a very strong negative reaction when
confronted with the difference between:
how their data is actually being used and
their perception of how it is being used.109
This is particularly the case where the difference
becomes explicit and too contrasting.110 For example,
many consumers willingly shared data on Facebook,
however when the use of that data by Cambridge
Analytica came to light, there was public outcry,
with Facebook being required to appear at hearings
before both the US congress and UK Parliament.111
The privacy paradox, illusion of choice and power
imbalances may all contribute to individuals
being unable to utilise neurotechnology without
relinquishing their privacy.
The Consumer Policy Research Centre in its In
whose interest? Why businesses need to keep
consumers safe and treat their data with care
(Working Paper) put forward two alternative
approaches to protecting data in Australia.
The Working Paper canvasses the creation of a duty
of care or best‑interest duty, which would operate
similarly to fiduciary duties in the finance sector to
hold businesses accountable for how they collect,
share and use consumer data.112
The Working Paper also advocates for a Privacy
Safety Regime which:
… utilises concepts from product intervention
powers and product safety interventions,
proposing options that would allow governments
and regulators to stop or limit obviously harmful
uses of data as well as a process for regulators
to proactively restrict and test new harmful
practices as they evolve.113
It is an open question as to which alternative
approach would be most effective or how such a
model would protect privacy in an age of technology
– but one which may require careful consideration
moving forward.
16
3.2 Freedom of thought,
conscience and religion
or belief
Neurotechnology will potentially challenge what it
means to have freedom of thought and agency over
our own lives. The application of neurotechnologies
have the potential to decipher and alter
perceptions, behaviours, emotions, cognition and
memory – all fundamental aspects of what makes
people who they are.114
This has the potential for the technology to
manipulate people’s beliefs, motivations and
desires.115 This has led to disquiet about the
possibility of novel forms of sophisticated ‘mind
control’ in the future – highlighting the need to
better protect freedom of thought. As is noted by
UNESCO when discussing freedom of thought in
this context:
It is noteworthy that freedom of thought is not
to be understood here merely in the traditional
sense that people should be free to express
their opinions or beliefs (forum externum), but
in the literal sense of the freedom to think by
themselves without being monitored by others
(forum internum).116
While there is a well‑articulated field of discourse
on the freedom of thought, it appears that
neurotechnology has not been given express
consideration.117
Article 18(1)‑(2) ICCPR state:
Everyone shall have the right to freedom of
thought, conscience and religion. This right shall
include freedom to have or to adopt a religion
or belief of his choice, and freedom, either
individually or in community with others and in
public or private, to manifest his religion or belief
in worship, observance, practice and teaching.
No one shall be subject to coercion which would
impair his freedom to have or to adopt a religion
or belief of his choice.
Protecting Cognition: Background Paper on Human Rights and Neurotechnology