MENTAL FIREWALLS: THE NEXT HUMAN RIGHT

ABSTRACT

In this fast-paced era of technological evolution, neurotechnology’s (brain-computer interfaces and emotion-recognition systems) are reshaping the very nature of human-machine interaction. While they hold promise toward better health care, education, and productivity, they also ascend the novel threat to a person’s most intimate domain: the human mind. The article explores neurotechnology in its legal aspect, focusing on the urgent need to avert mental privacy and cognitive liberty of democratic societies. Further, it considers the inadequacies in current Indian legal frameworks, such as the Constitution, the Information Technology Act, and the Digital Personal Data Protection Act of 2023, to meet the challenges posed uniquely by brain data and neural surveillance. By looking at developments elsewhere, such as Chile’s landmark legislation on neuro-rights and the European regulatory discourse, the article argues for the immediate acceptance of mental privacy as a fundamental right under Indian law. This article argues that the right to freedom of thought and protection against forced cognitive intrusion must be part of the constitutional and legislative lexicon before neurotechnology is duly hailed among application-ready arenas. In view of the future legal implications of this novel technological frontier, the article urges the courts to pre-emptively get involved and also call for specialized legislation to prevent the dystopian prospect of thought surveillance and manipulation.

KEYWORDS: Neurotechnology, Mental Privacy, Cognitive Liberty, Neuro-Rights, Technology.

INTRODUCTION:

Neurotechnology is no longer the fantastical premise of science fiction; it is a rapidly emerging, reality that is emerging as a shaping force both human interaction and cognition, even human identity. From Elon Musk’s Neuralink[1] to AI detecting emotion in classrooms or workplaces, brain-computer interfaces (BCIs)[2], neural implants, and cognitive surveillance tools are becoming a part of everyday life. These technologies represent the potential for new avenues of treatment for neurological disorders, improved learning, and limitless human capabilities. Yet, with those potentials, lie daunting threats to the mental sanctity of the human mind. Neurotechnology can record brain signals, read thoughts, detect emotions, and even influence decision-making. The extraction and use of intimate data from an individual’s brain—beyond what can be taken from fingerprints or DNA—represents an extraordinary level of invasion on one’s autonomy, dignity, or freedom. With this emergence of neurotechnology no more zeros and ones and no more tracking and tracing but an emerging new rights category: the right to mental privacy. This right seeks to protect the inner sanctum of thought from interference, surveillance, and manipulation. India, like many other jurisdictions, is not ready to address the legal frontiers surrounding neurotechnology. The Digital Personal Data Protection Act, 2023 is a great step forward, yet falls short of understanding the depth of cognitive data and the complexity of neuro-rights. The Indian Constitution has a wide breadth of protection for individual rights, but continues to not explicitly mention cognitive liberty or thought protection outside of a broad interpretation of Article 21. There have been strides by countries outside of India to formalise neuro-rights; for example, Chile is a pioneering country that has included neuro rights di-rectly in their constitution. Additionally, countries in the European Union have begun to discuss the regulation of brain data in the context of their respective AI regimes and data protection regulations. These developments reflect some recognition that the brain is the next frontier of the privacy debate and that we must be prepared with legal mechanisms in place to address it, and that the law must “catch-up”. This article looks at where law, technology and neuroscience meet and stresses the urgent need for laws governing mental privacy in India. The intention is to cause you to reflect and consider, even though the laws governing our physical aspect can feel very invasive, are we ready to protect the last true sanctuary of freedom our minds.

2.DEFINING AND UNDERSTANDING NEUROTECHNOLOGY AND THEIR FUNCTIONALITY:

Neurotechnology is the use of engineering and computational tools to study, repair, or augment neural systems. Essentially, it connects the human brain to an external interface and human brain-material interface. Although historically associated with medical uses — for example, deep brain stimulation for Parkinson’s disease and cochlear implants for hearing loss — neurotechnology has evolved beyond the healthcare sector.

2.1 BRAIN-COMPUTER INTERFACES (BCIS):

BCIs are arguably the most popular instance of neurotechnology. The distinguishing feature of BCIs is the ability to interface the brain with an external device (e.g., computer, prosthetic limb) by translating patterns of neural signals to digital commands. The most publicized BCI initiative is Elon Musk’s Neuralink, which has ambitions from treating neurological diseases to telepathy.

2.2 EMOTION RECOGNITION AND COGNITIVE MONITORING:

Some technology now claims the ability to recognize emotion, intention and attention based on EEG signal analysis or facial micro-expressions. It has been reported that schools in China are using AI-enhanced headsets that allegedly assess students[3]‘ concentration, raising concerns about the monitoring of children´s cognitive states. In the workplace, employers may (or may want to) employ emotion recognition during interviews or use AI to monitor employee motivation and morale. The overlap between performance management and psychological monitoring reflects the gray blanket covering cognitive monitoring.

2.3 PREDICTIVE AND MANIPULATORY CAPABILITIES:

It is no longer hypothetical to predict behaviour based on brain data. It has been documented that it is possible to identify subconscious preferences or decisions prior to the person’s knowledge. If exploited, this power could result in manipulative practices regarding advertising, profiling for law enforcement or political purposes—whereby the very concept of free will poses a threat.

2.4 NEUROENHANCEMENT AND DUAL USE RISKS:

In addition to therapeutics, neurotechnology is increasingly being studied or deployed to enhance cognition—think, memory boost, focus, or moral reasoning. This raises different ethical and legal questions around issues of inequality, consent, and coercion. Further, all

neurotechnology have the potential for dual-use, where, despite its positive uses, neurotechnology can also be weaponized or used in repressive ways by despotic regimes

3.MENTAL PRIVACY AND THE RIGHT TO COGNITIVE LIBERTY:

The human mind has long been considered the last bastion of privacy. Our thoughts and beliefs, along with our emotions, which exist solely in the inner self thus present an area replete with an absence of external scrutiny[4]. Regardless, with the proliferation of neurotechnology, such dying boundaries eventually translates into pressing concern regarding what scholars are now referring to as the “right to mental privacy” and “cognitive liberty[5].”

3.1 MENTAL PRIVACY: A NEW FORM OF PERSONAL PRIVACY:

Mental privacy is traditionally used to delineate the protection of brain data (technically, patterns of neural activity, cognitive states, and emotional responses) so that it is not collected, analysed, or used without permission. Brain data is more personal than the personal data being recognized in conventional debates over digital privacy. The concept of cognitive liberty entails a fair amount more than simply the freedom to thin but it does include it (and access to the brain). As the world of neurotechnology rapidly advances the capability to influence, alter, or read mental states, individuals face a real potential of loss of autonomy over their own minds. In the face of these new developments, cognitive liberty as an emerging human right encompasses a few key aspects:

3.2 FREEDOM FROM UNAUTHORIZED ACCESS TO BRAIN DATA. 

The right to mental integrity, the ability to be free of intrusive neurotechnology (with bodily integrity, physiological integrity dimensions employing cognitive liberty and agency rights).

FREEDOM OF SELF-DETERMINATION, the ability to alter cognitive skills and abilities or refrain from altering cognitive skills and abilities. The capacity to refuse coercive and potentially harmful anxiolytic neurotechnology use, particularly for populations in institutions like prisons (think threats of isolation), schools, and military settings.

 3.3 LEGAL VOID AND THE NEED FOR RECOGNITION:

The majority of today’s legal frameworks, including international law, will not explicitly recognize cognitive liberty or the notion of mental privacy. Although laws relating to privacy exist in the form of laws such as the General Data Protection Regulation (GDPR) in the European Union which offers some degree of protection to (biometric) or (health) data, brain-related data is left ambiguous, overlooked, or unknown. Without explicit legal stipulation, people are vulnerable to a myriad of abuses from the component of lacking consent regarding surveillance, to information-based manipulation of behaviour. Moving ahead requires a long overdue step to bring mental privacy and cognitive liberty into robust privacy and human rights frameworks.

This may involve:

• Amending constitutional rights, data protection laws, or potentially even criminal laws to establish:
• Explicit recognition of mental privacy and cognitive liberty;
• Tighter rules regarding collection and consent and usage of brain-related data; and
• Legal recourse for those whose cognitive liberty is violated.

4.PRESENT LEGAL & ETHICAL FRAMEWORKS:

As the innovation in neurotechnology outpaces legislative development, the legal sector faces an urgent challenge: how to regulate a field of technology that is at the cross-section of neuroscience, technology, and human (fundamental) rights. There are limited general legal frameworks which could protect from Learning from Brain Data, but at present no one legal framework could regulate the misuse of brain-data privacy, or negligence and cognitive liberty.

4.1 DATA PROTECTION LAWS – LIMITED PROTECTION

European Union – GDPR

The General Data Protection Regulation (GDPR) provides one of the most comprehensive data protection frameworks in the world. While “brain data” or “neurodata” aren’t specifically mentioned, the GDPR covers biometric data and health data, which may include EEG data in some circumstances[6].

Important GDPR principles applicable to neurotechnology include:

Consent – It has to be informed and explicit when processing sensitive data.

Data Minimization & Purpose Limitation – It limits the data to only what is used for the original reason it was collected.

Right to Explanation – Users may be able to ask why an automated decision was made and if this can be applied to an artificially intelligent neuroanalysis tool.

United States – Sectoral Approach

There is no federal data protection law in the United States. Neurodata might fall under HIPAA, as protected data in the medical system, or under consumer protection from the Federal Trade Commission (FTC), but from a regulatory legal perspective–it is fragmented. Companies involved in neurotechnology that are not part of the healthcare system are not federally regulated in their practices, clearly leaving users susceptible to manipulation or exploitation.

4.2 HUMAN RIGHTS INSTRUMENTS:

Universal Declaration of Human Rights (UDHR)

Article 12 of the UDHR guarantees privacy; Article 18 guarantees that people may have freedom of thought, and freedom of conscience. These could be construed as mental privacy and cognitive liberty, but the UN has not accepted either term explicitly[7].

ICCPR

The provisions of the International Covenant on Civil and Political Rights (ICCPR) on Article 17 (right to privacy) and Article 19 (freedom of expression) could certainly be interpreted in ways to encompass brain-centred rights, but the lack of proper terminology made them impractical.

4.3 SOFT LAW GUIDELINES FROM SCIENCE AND TECHNOLOGY BODIES:

The OECD, the IEEE, and the NeuroRights Foundation, put out soft law principles related to neurotechnology, including:

1. The Right to Mental Privacy
2. The Right to Psychological Continuity
3. The Right to Personal Identity
4. The Right to Equal Access to Mental Augmentation.

4.4 NATIONAL INITIATIVES AND ILLUSTRATIVE CASES

In 2021, Chile amended the Constitution so that neuro-rights were recognised[8]. The amendment indicates that the development of science and technology should respect people’s mental integrity and autonomy. In Spain and Brazil, there are possible legislative initiatives for neuro-rights. In India, while the case of Justice K.S. Puttaswamy v. Union of India recognised the right to privacy as a fundamental right, there has not been any legislative or judicial developments that would lead to awareness of neurotechnologies.

5.LEGAL GAPS AND EMERGING ISSUES:

While data protection laws and human rights frameworks exist, these legal regimes do not sufficiently protect against the risks associated with neurotechnologies. In particular, the unique nature of brain data (which includes an under-analysed third category of intimate, involuntary, and predictive brain data) creates situations that challenge privacy or health-centric laws.

5.1 FAILURE TO EXPLICITLY RECOGNIZE MENTAL PRIVACY

Mental privacy (the right to manage and control one’s thoughts, intentions, and neural patterns) is not an appropriate term for legal systems, even when privacy rights are enshrined in constitutional and international standards. As neurotechnologies increase their ability to extract subconscious preferences and emotional states, leaving a legislative vacuum on mental privacy leads to unintended consequences such as:

• Undue collection of brain data without consent through EEG headbands, wearable devices, or immersive environments.
• Neuro-marketing and surveillance to target individual preferences.
• Obtaining cognitive profiles without informed consent. [9]

5.2 ISSUES OF CONSENT AND AUTONOMY:

Unlike data in traditional contexts, brain signals are different in that users do not always have conscious control over what brain data is extracted – and certainly cannot curate it. This poses challenges for the data protection principle of informed consent in better understanding neurocontexts because:

• Users do not always understand what data is being extracted or inferred.
• Users may only be aware of involuntary brain activity when it is recorded, which affects their ability to truly consent.

5.3 NEUROLOGICAL DISCRIMINATION AND COGNITIVE BIAS

There is concern that neurodata will classify individuals for the following reasons:

• Levels of intelligence
• Levels of emotional resilience
• Predispositions to addiction, aggression, or mental illness
• If this profiling occurs, it could result in neuro-discrimination when hiring, providing insurance, or education; not unlike genetic or race discrimination. The truth is that current anti-discrimination laws do not include this type of discrimination, and there lies the danger of a dangerous blind spot[10].

5.4 REMEDIES AND RESPONSIBILITY

For individuals who are victims of unauthorized data usage or manipulation of their neurodata, or awareness of the use of neurodata, actions to remedy can be difficult: There are no recognized standard processes for notifying individuals of breaches of neurodata. Forensic evidence in cases of mental manipulation are highly problematic: from a scientific standpoint it is difficult to identify whether mental manipulation has taken place, but it is also legally unproven.

Does unnecessary interference/responsibility cease to be an issue in cross-border data flows?

6.TOWARDS A FRAMEWORK BASED ON NEURO-RIGHTS:

As neurotechnology continues to advance rapidly, existing legal doctrines demonstrate an inability to address the ethical, privacy, and human rights issues raised by the field’s implications. A framework based on neuro-rights, grounded in fundamental freedoms and adapted to a world where technology is a part of reality, needs to be developed to ensure that, whenever practicable, the sanctity of the human mind is protected in the critical area of technology.

6.1 WHAT ARE NEURO-RIGHTS?

Neuro-rights are evolving proposed legal concepts to protect mental privacy, cognitive liberty, psychological continuity, and equitable access to neurotechnology. Neuro-rights are grounded in the idea that brain data and related mental functions are baseline elements of persons’ social dignity, that should be given enhanced protection[11]. Sections that have been suggested for inclusion as part of a neuro-rights framework right include:

• Right to mental privacy – The right to be free from the collection, use, or decoding of one’s brain data without consent.
• Right to cognitive liberty – The right to self-govern one’s neural activity without influence or interference from others.
• Right to mental integrity – The right to be free from the manipulation, change or harm of one’s neural functions.
• Right to psychological continuity – The right to have one’s sense of personal self-persisting in time.
• Right to fair access – The right to benefit and not be excluded from access to the exploration of neurotechnology’s and their use in society; that they are not the very possession of powerful nobles and nations.

6.2 GLOBAL LEGAL TRENDS

Some jurisdictions and international organizations have begun engagement and brainstorming about or drafting neuro-right legislation, including:

• Chile was the first country to constitutionally include neuro-rights, adding proposed language to Article 19 ensuring mental integrity and protecting others from accessing brain data.
• The OECD has called for ethical standards for the development and deployment of neurotechnology.
• The Bioethics Committee of UNESCO has released soft-law guidelines, on brain-data governance emphasizing the respect for dignity, autonomy, and equality.
• These initiatives represent a paradigm shift from purely medical to legal thinking about the brain as an inviolable means of lawful and legal identity.

6.3 INCORPORATING NEURO-RIGHTS INTO EXISTING LEGAL FRAMEWORKS

Although stand-alone neuro-right laws are preferable, short-term reforms can include:

Amending existing privacy/data protection laws (i.e., India´s DPDP Act; EU – GDPR), to include “neural data” as a distinct class of sensitive personal information. Expanding healthcare and disability laws to prohibit discrimination against individuals using BCIs; i.e., neural implants[12]. Incorporating neuroethical principles in regulations for AI and biometric surveillance. Enable data protection authorities and ethics boards to conduct on-going assessment and reviews of neurotechnology initiatives.

6.4 PUBLIC AWARENESS AND ETHICAL LITERACY IS PART OF THE SOLUTION

Laws do not go far enough. Resilience for society can only really develop if all people have some level of neuroethical education, which will:

Develop digital and cognitive literacy in schools and universities.

Support the active participation of users in understanding how and when their mental data is being utilized when they choose to engage with self-help digital devices.

Foster open, informed, democratic discourse around neurotech innovation. In this manner, a neuro-rights framework not only serves as a legal safeguard but also as a societal system of values that institutionalizes the mind as the final frontier of freedom.

CONCLUSION:

As humanity stands on the brink of a neurotechnology revolution, the law cannot remain silent. The ability to read, manipulate, even sell human thought is not an abstract science fiction narrative, it is next week. While the law has addressed the challenges of the analogy and even part of the digital domain, legal and quasi-legal measures fall short in the realm of neurotechnology and its invasive aspects. The development of neuro-rights (which include cognitive liberty, mental privacy and protection from algorithmic manipulation where a person’s thoughts are being impacted by society or culture) is not a legal nicety; it is a democratic obligation to have and develop. We need to establish rights at the beginning of the range of technology – and to entwine those rights within mechanisms like constitutional law, human rights law and data protection law before the business or military application of this technology arrives at the ethical and legal tables. Lawmakers, courts, technologists and civil society need to come together to future-proof basic rights. There are formations like Chile that started, but we need global harmonisation and then regional adaptation. India needs to start its legal inquiry into the cognitive construct of autonomy under Article 21 of the Constitution because if we do not, the prospect of the potential of human dignity will be rewired, by those who hold the circuits of the mind.

“Where the law fails to act, the algorithm rewrites autonomy.”

REFERENCE(S):

1. Martha J Farah, ‘Neuroethics: The Practical and the Philosophical’ (2005) 8 Trends in Cognitive Sciences 34.
2. Theodore W Berger, ‘Brain-Computer Interfaces: Restoring Lost Function with Neuroprosthetics’ (2007) 1 IEEE Pulse 85.
3. Thomas Metzinger, ‘The Right to Mental Self-Determination’ in The Human Right to Science, ed Jan-Christoph Heilinger (Fischer 2019).
4. Digital Personal Data Protection Act 2023, No. 22 of 2023, s 2(13) (India).
5. Nita A Farahany, The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology (Macmillan 2023).
6. Rafael Yuste et al, ‘Four Ethical Priorities for Neurotechnologies and AI’ (2017) 551 Nature 159.

[1] Neuralink, ‘Join the Team’ (Neuralink, 2024).

[2] Nita Farahany, The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology (St Martin’s Press 2023).

[3] Reports suggest schools in China have used EEG headbands to monitor student focus, sparking global privacy concerns.

[4] Thomas Metzinger advocates for mental privacy rights.

[5] The term “cognitive liberty” was popularized by neuroethicist Wrye Sententia to describe mental self-determination.

[6] The GDPR defines biometric and health data as sensitive, but neurodata lacks explicit classification.

[7] The UN Special Rapporteur on freedom of expression has called for explicit recognition of cognitive rights.

[8] Chile amended its constitution in 2021 to protect mental integrity and neuro-rights.

[9] Neurodata isn’t yet protected under India’s DPDP Act 2023.

[10] Current Indian anti-discrimination laws, including the Constitution and Equality Acts, do not address neuroprofiling.

[11] The NeuroRights Initiative (Columbia University) proposed a global framework for protecting mental privacy.

[12] Lack of neurodata standards hinders global enforcement.