Neurorights: Is the creation of new human rights effective in protecting human dignity from the misuse of neurotechnology?
Bernadete Dias
CGM, São Paulo
André Lins
CGM, São Paulo
Thais Fernandes
CGM, São Paulo
Introduction
Neurotechnologies – devices that interact with the human nervous system – have revolutionised areas such as health and neuroscience, enabling advances in the treatment of diseases such as Parkinson’s and drug-resistant depression, and promoting cognitive and motor improvements. They can also be used to improve cognitive abilities, restore lost motor functions[1] or even modify perception and memory. The most notable examples of neurotechnologies are brain implants, such as deep brain stimulation (DBS) devices, brain-computer interfaces (BCI) which allow direct communication between the brain and machines, and neural modulation technologies, such as transcranial direct current stimulation (tDCS).
The development of brain mapping, stimulation and imaging techniques has brought a greater understanding of the human brain and allowed neuroscience to evolve due to the understanding of how the human mind works. In this sense, the advance of neurotechnologies bring with them not only the need to protect our traditional rights, but also the need to protect other possible new rights – for example, mental and cognitive integrity. This has fostered debate on the ethical and legal issues involved in the use of neurotechnologies, especially regarding non-clinical uses, such as the use of private or unconscious information for commercial or political purposes.
In this context, the regulation of neurorights as new human rights aims to protect rights that are not yet covered or are insufficiently protected by existing human rights. In contrast, there are those who argue that it would be possible to fit neurorights into existing human rights (such as the right to privacy, intimacy and integrity), prioritising the regulation of neurotechnologies and strengthening efforts to pass more robust privacy laws and policies.
This article presents the challenges that arise with the advance of neurotechnologies, as well as addressing favourable and unfavourable arguments regarding the regulation of neurorights as new human rights, and fostering debate about the possibilities envisioned for regulating neurorights and neurotechnologies.
Regulation of neurorights or neurotechnologies?
Until then, it was thought that the mind could be the last refuge of personal freedom. However, with the advance of neurotechnologies, the privacy of thoughts could be threatened. Numerous technology companies[2] have made massive investments to develop devices capable of reading human brain activity and writing neural information into the brain.
In this context, neurotechnological advances bring with them complex ethical and legal challenges that require a detailed examination of the limits of intervention in the human brain, such as privacy and consent,[3] agency and identity,[4] augmentation[5] and bias.[6]
As a response to these challenges, the concept of neurorights has emerged to protect the fundamental rights of human beings from the advance of neurotechnologies and the possible misuse of these technologies. In this context, debates are emerging on the need to revise or replace existing legal concepts, especially human rights, due to the potential impact that neurotechnologies have on the right to privacy, freedom of thought, mental integrity and other human rights.
Historically, human rights have developed as responses to recurring threats to the interests of human beings, as well as to address concerns brought about by the development and evolution of society and the globalised and technological world. An example of this is the 1997 Universal Declaration on Human Genome and Human Rights (UDHGHR), which was created to prevent the collection and use of genetic information in ways that are incompatible with human rights and to protect the human genome from manipulation that could endanger future generations. In this scenario, similarly, the innovations brought about by neurotechnologies will reshape ethical and legal concepts, and the legal system must be adapted to deal with the challenges posed by neurotechnological advances.
After analysing the relationship between neuroscience and human rights, Marcelo Ienca and Roberto Andorno identified four new human rights that could become highly relevant in the coming decades: the right to cognitive freedom, the right to mental privacy, the right to mental integrity and the right to psychological continuity. They argue that these rights reflect important social values, will not be merely repetitive, are capable of achieving international consensus and are sufficiently precise to give rise to identifiable rights and obligations and therefore do not raise concerns about rights inflation. They argue that the international human rights protection system is not sufficient to adequately protect the violations that may arise from the use of neurotechnologies.
In this context, in 2019, the Neurorights Foundation was created, to serve as an advocacy organisation for human rights directives and to develop further ethical guidance for neurotechnological innovation. It focuses its efforts on the development of a code of ethics for scientists involved in neurotechnology and the international recognition of five neurorights: personal identity, free will, mental privacy, equitable access and protection against bias.
On one hand, the creation of new human rights to address the issues arising from neurotechnological advances would be beneficial and justifiable, since it would specifically protect issues that until then did not exist and therefore cannot be sufficiently protected by existing legal concepts.
On the other hand, the recognition of new human rights raises concerns about rights inflation, since the unjustified proliferation of rights can generate scepticism about all rights, dilute their essence and divert the focus from protecting fundamental human interests.
It is also possible to debate that, instead of several different international organisations legislating on neurorights as new human rights related to neurotechnologies, it would be more beneficial to regulate the use of neurotechnologies, interpreting neurorights under the concepts of the right to privacy and integrity that already exist, thus avoiding the abusive and illegal use of neurotechnologies.[7]
This is because neurotechnological devices are increasingly intrusive on the privacy and free decision of individuals, so there needs to be strict regulation of the coercive uses of these devices: for example, because the coercive implementation of these devices violates human dignity. In this context, neurorights would not be complying with the principles of progressivity and non-regression. Instead, they are becoming ambiguous clauses for the punitive power of the state.
In addition to the prospect of regulating neurorights as human rights, it is also possible to imagine an ethical and public policy approach to neurorights. In this context, neurorights are seen as values or principles that should be considered when making decisions regarding the development and use of neurotechnology, rather than as fundamental rights. The ethical and public policy approach to neurorights is based on their complexity, given the nature of the brain and the difficulty of defining these rights precisely. It also takes into account the rapid advance of neurotechnology, advocating flexible laws to keep up with these changes, and the need to align neurorights with the cultural values and traditions of each society. This approach is seen as more pragmatic than treating them as fundamental human rights, but it faces challenges, such as the risk of insufficient protection of neurorights. To mitigate these problems, an alternative would be to create specialised ethical committees, develop laws that regulate aspects such as consent and privacy, and promote public education on the subject.
Thus, considering that neurorights are an emerging issue both in the field of ethics and in the legal system, and the social impacts brought about by neurotechnologies, we believe that the debate about the regulation of neurorights and, consequently, how they should be regulated (whether as universal human rights), should be broadened in the international community, weighing up the benefits and harms of this regulation.
Regulation of neurorights and neurotechnologies worldwide
The recognition of neurorights is advancing globally but faces regional and cultural challenges. In some countries, neurorights are treated as a matter of fundamental human rights, while in others they are seen as an ethical or public policy issue.
In Latin America, the debate on the regulatory, social and philosophical aspects of neurotechnologies is expanding, with relevant contributions on their impact on the region and the need to guarantee equitable access. The inclusion of neurorights in Chile’s new constitution sets an important regional precedent by enshrining mental integrity within the constitutional framework. In Colombia, the Constitutional Court recognised the right of people with mental disabilities to the protection of their human rights.
In Brazil, the issue is still emerging, with little public discussion and a lack of specific regulation. However, concerns about the protection of privacy and individual freedom in personal data spheres may influence future legislative approaches. For example, the digital law subcommittee of the Commission to update the 2002 Civil Code proposed the inclusion of neurorights in the Brazilian Civil Code. The proposal for this legislative update with a focus on digital law aims to position Brazil at the forefront of protecting human rights in the digital age. While there is no specific regulation on the subject, an alternative would be to interpret neural data as sensitive personal data, under the terms of Article 5, II, of the General Personal Data Protection Law. In fact, perhaps this interpretation is an alternative to the need for specific regulation, avoiding rights inflation, which is already a concern in Brazil.
The European Union recently approved the regulation of artificial intelligence (AI Act),[8] which includes aspects related to neurorights, such as the protection of health, safety, and fundamental rights, but there is still no specific legislation regarding neurorights.
In the United States, according to the Neurorights Foundation, in April 2024 the state of Colorado passed the first law to define and protect neural data, including that collected by non-medical consumer neurotechnological devices. In California, meanwhile, a bill dealing with neurorights was passed in September 2024. The new legislation ensures that consumers’ neural data receives the same level of protection as sensitive personal information, protecting it from misuse and setting a strong precedent for neuroprivacy rights.[9]
International bodies such as the United Nations in 2022 addressed the issue with the Ethical Issues of Neurotechnology: Report; in 2023 the Organization of American States published the Inter-American Declaration of Principles on Neurosciences, Neurotechnologies and Human Rights.
Conclusion
The advance of neurotechnologies offers a range of benefits and possibilities for medicine, education, and quality of life, but also presents significant ethical and legal challenges. The creation of neurorights emerges as an urgent need to protect the mental privacy, autonomy, and dignity of individuals in the face of the use of these technologies.
Regulating neurorights as human rights would have a profound impact on laws and legal systems, requiring an update of legislation on privacy, consent, liability, and data protection. While neurorights offer a crucial step towards ensuring the protection of the human mind from technological abuse, their implementation needs to be carefully planned to balance the protection of individuals with the need to promote innovation and the advancement of neurotechnologies. The challenge will be to find a flexible but robust legal approach capable of dealing with rapid technological change without compromising the fundamental rights of individuals.
By recognising and protecting neurorights, we are defending the fundamental principles of human dignity, privacy and individual freedom in a world increasingly permeated by technology. At the same time, by developing and using neurotechnologies ethically and responsibly, we can harness their potential to improve people’s quality of life and promote progress for society as a whole.
References
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[1] For example, the use of brain computer interfaces (BCIs) by people with physical disabilities: by means of brain implants or external electrodes, these individuals can learn to control devices using only brain signals, allowing them to regain mobility and independence.
[2] Google, IBM, Microsoft, Facebook and Apple are building sophisticated artificial neural networks that can already outperform humans on tasks with well-defined inputs and outputs. See R Yuste, S Goering, B Arcas et al. ‘Four ethical priorities for neurotechnologies and AI’ (2017), 551, Nature, 159. Available at www.nature.com/articles/551159a.
[3] Individuals should have the right to limit access to their neural data and to withdraw any consent granted. See ibid.
[4] Neurotechnologies can corrupt the sense of identity of the individuals who use them. See ibid.
[5] Neurotechnologies that expand physical or mental capacities can alter social norms and increase problems related to equitable access and new forms of discrimination in general. See ibid.
[6] When scientific or technological decisions are based on social and structural norms, the resulting technology can favor some groups and harm others. See ibid.
[7] For example, forcibly subjecting potential criminals to neural imaging tests against their will under the pretext of protecting public safety. See JM Díaz Soto and D Borbón ‘Neurorights vs. neuroprediction and lie detection: The imperative limits to criminal law’ (2022) Front. Psychol. 13:1030439. Available at /www.frontiersin.org/journals/psychology/articles/10.3389/fpsyg.2022.1030439/full.
[8] Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024. Available at https://eur-lex.europa.eu/eli/reg/2024/1689.
[9] ‘SPOTLIGHT: Colorado Enacts First Neurodata Law in the World’ (Neuroage, April 2024), available at https://static1.squarespace.com/static/60e5c0c4c4f37276f4d458cf/t/66313fe6dcfcdb295ebadd0b/1714503655762/April_2024.pdf, accessed 14 January 2025.