New neuroimaging technologies are rapidly advancing our ability to examine the brain, revealing information about our memories, thoughts and even intentions.
As these technologies improve, some are advocating for their use in criminal investigations and legal proceedings.
But could mandatory brain scans used on suspects violate privacy rights?
Key Facts:
- Neuroimaging technologies like MRI, CT, EEG and fMRI allow examination of brain structure and function.
- These scans may be able to detect lies, memories and even predict future criminal behavior.
- Using brain scans on suspects without consent raises concerns about privacy and human rights.
- Under European law, mandatory brain scanning likely interferes with privacy rights, but may still be justified for crime prevention.
- More debate is needed on privacy protections and the ethics of mandatory brain scanning.
Source: J Law Biosci.
The Benefits of Brain Scanning for Law Enforcement
Modern neuroimaging methods like MRI, CT scans, EEG and fMRI have rapidly advanced scientists’ ability to examine the inner workings of the human brain.
Structural scans like MRI and CT provide images of brain anatomy, while functional scans like EEG and fMRI indirectly measure brain activity.
As the technology improves, some neuroimaging techniques show promise for revealing concealed information that could be useful in criminal investigations.
Methods like “brain fingerprinting” and concealed information tests aim to detect whether a suspect recognizes details about a crime that only the perpetrator would know.
Other brain-based lie detection techniques analyze activity patterns when a suspect answers questions, trying to determine if they are being truthful.
Perhaps most controversially, some researchers think brain scans could even predict a suspect’s likelihood of committing crimes in the future.
While the technology is far from foolproof, many believe neuroimaging will soon advance to the point where it can provide valuable evidence in criminal trials.
Naturally, the ability to detect memories and intentions directly from a suspect’s brain is an alluring prospect for law enforcement.
However, mandating brain scans on suspects who haven’t consented raises serious ethical and legal concerns.
Coercive Brain Scanning May Violate Privacy Rights
The most pressing issue with mandatory brain scanning is its potential violation of privacy rights.
Neuroimaging can reveal highly personal details about an individual’s mind, which many would consider private information.
When applied coercively to suspects, some view brain scans as an unacceptable intrusion by the government into our inner thoughts and memories.
But would coerced brain scanning actually violate privacy rights under current laws?
A recent academic study examined this question in the context of European human rights law.
Under the European Convention on Human Rights, Article 8 grants a right to respect for private life.
This covers our physical and psychological integrity, including the protection of personal data.
Since neuroimaging accesses private mental data, the study concluded that mandatory brain scanning likely interferes with Article 8 privacy rights when applied to an unwilling suspect.
However, the study argues that interference may still be justified under Article 8, section 2.
This allows privacy rights to be balanced against the interests of public safety and crime prevention.
The study suggests that – under certain conditions – the public benefits of using brain scans to solve and prevent crimes could outweigh the violation of privacy rights.
Debate Needed on Ethics and Privacy Implications of Brain Scans on Criminal Suspects
While the limited use of brain scans on suspects may not technically violate privacy laws, coerced neuroimaging certainly raises ethical concerns.
Mandatory brain scanning forces suspects to divulge their private mental information, including memories, knowledge and even unconscious intentions.
This could be considered a profound invasion of mental privacy and autonomy.
Critics argue that permissions for privacy violations, even when sanctioned under law, put us on a path towards ever-greater government encroachment on our minds and thought processes.
Though evidence from brain scans may help convict the guilty, it also threatens to chill free thinking, they say.
Others contend that public safety can warrant minor privacy sacrifices, just as airport body scanners aim to prevent terrorism.
Though brain scanning could discourage free thinking if applied too broadly, limited use on suspects could aid justice without severely curtailing civil liberties.
But finding the right balance requires careful consideration of people’s cognitive liberty.
There is currently no consensus on the ethics of applying neuroimaging to unwilling suspects.
Laws and rights are also still evolving in relation to these rapidly advancing technologies.
More informed debate on brain privacy is clearly needed, especially considering that ever more revealing neuroimaging methods are on the horizon.
Real-Time Mind Reading Inches Closer to Reality
One emerging neurotechnology hints at potentials beyond simply detecting lies and memories.
Recently, scientists have made strides towards “real-time neuroimaging mind reading” – identifying someone’s thoughts as they occur in the moment.
By combining fMRI scans with machine learning algorithms, researchers were able to infer which abstract physics concepts participants were thinking about in real time with a surprising 91% accuracy.
Work is ongoing, but this technology illustrates how neuroimaging could evolve to reveal someone’s fleeting thoughts, emotions, motivations and preferences without any questioning at all.
Real-time neuroimaging mind reading raises the stakes when considering coerced brain scanning.
While current methods allow focused interrogation about details of a crime, near-future brain scans could amount to an involuntary download of someone’s unfiltered thoughts.
This possibility furthers the case for strong protections of mental privacy.
Privacy Rights for Coming Advances in Neurotechnology
Near-future neurotechnologies like real-time fMRI mind reading will demand rethinking our notions of cognitive liberty.
As the EU study concluded, current privacy rights may not adequately protect people from having their inner thought processes unwillingly exposed.
One proposal is enumerating a distinct European human right to “mental privacy”, which would cover the protection of private mental information.
However, some argue that current privacy rights should sufficiently guard against misuse of brain data, if properly reinforced and emphasized.
Other human rights laws, like the privilege against self-incrimination, may also provide avenues to regulate mandatory brain scanning.
Further debate on managing emerging neurotechnologies will be vital to limit abuses and protect free thinking.
The rapid pace of advancement in neuroimaging and other brain analysis techniques challenges lawmakers to keep privacy rights aligned with new potentials for accessing people’s thoughts.
Though still an emerging field, modern neuroscience is progressively eroding old assumptions about the privacy of our own minds.
How we balance public safety interests against threats to our cognitive freedom and autonomy, as neurotechnologies grow ever more intrusive, are crucial questions for our future.
References
- Study: Coercive neuroimaging, criminal law, and privacy: a European perspective
- Author: Sjors L T J Ligthart (2019)
