OPINION
Brain-machine interfaces and neuro-rights
By Flávia Pietri
Brain-machine interfaces were, until recently, subjects confined to futuristic science fiction films. Today, however, they are a reality and have even become part of legal debates worldwide, prompting reflections and studies by legal professionals to ensure the so-called neuro-rights.
These devices range from glasses that function as remote controls in video games—sending commands directly from brain waves and already available on the market—to chips invasively implanted in the brain, transmitting the captured brainwave data directly to technological devices such as computers.
In fact, in May of this year, the company Neuralink performed the first intracerebral implant, inserting a coin-sized chip into a human brain so that a computer could be completely controlled by thought alone.
This first attempt was conducted on a volunteer who had lost motor function below the neck after a serious accident. After the chip was implanted, he reported feeling independent again.
It is important to note that since the implantation, only 15% of the implanted receptors have functioned well. The rest, for reasons still unidentified, did not perform as expected. Additional surgeries were required to “recalibrate” the system, according to Neuralink.
Brazilian scientist Miguel Nicolelis—ranked among the top 20 in his field in the early 2010s by Scientific American—shared several reflections on the topic in a March interview with Forbes magazine.
First, he asserted his claim to having created the first brain-machine interface capable of controlling technological devices directly through brainwaves—but in a non-invasive way. On this point, Nicolelis highlights the risks of implanting chips, emphasizing that significant outcomes can be achieved through non-invasive techniques. He urges caution, stating, “For the technology to reach as many patients as possible, invasive techniques cannot be the solution.”
“This is the first commandment of medicine. Whatever you do must not put the person at greater risk than they already are,” he said. Additionally, Nicolelis criticized what he calls the commercialization of scientific research, where the pursuit of funding is driven by attention-grabbing claims made to the general public—especially on social media—without well-developed scientific research to support them.
Decision-making free from neurotechnological interference
From a legal perspective, the debate is intense, centering on the creation of regulations to ensure that individuals retain control over their decision-making processes, free from any covert manipulation by neurotechnologies. Studies already show that such interfaces can alter brainwaves—and therefore thoughts. In other words, they can go beyond the brain-to-machine pathway, where brainwaves control devices, to a machine-to-brain route, where devices send impulses to the brain, potentially influencing thoughts.
In this context, the concept of neuro-rights is emerging, related to the regulation and protection of individual rights in light of potential brain manipulation. The term was introduced by NeuroRights, a platform managed by Columbia University in New York, which proposed a new international human rights legal framework encompassing five major neuro-rights and their respective principles:
(i) Right to Mental Privacy: Data on a person’s brain activity cannot be used without their consent. Mind-reading and the sale of brain data are prohibited;
(ii) Right to Personal Identity: Under no circumstance may neurotechnology alter one’s sense of “self”;
(iii) Right to Free Will and Cognitive Liberty: Individuals must be able to make decisions freely, without manipulation by neurotechnologies;
(iv) Right to Fair Access: Enhancement of brain capacities through neurotechnology must be accessible to everyone;
(v) Right to Protection Against Bias: Individuals must not be discriminated against based on data obtained through neurotechnology.
Regarding the incorporation of these principles into legal frameworks, Chile has become a global reference, being the first country to include them in its Constitution.
In Spain, evidence obtained through neurotechnology is permitted in criminal proceedings, with an exception to the right to mental privacy in the case of the defendant, solely for the purpose of locating victims—an approach that has sparked outrage among many legal professionals.
In Brazil, Constitutional Amendment Proposal No. 29/2023 is currently under consideration. It seeks to amend the Constitution to include protection of mental integrity and algorithmic transparency among the fundamental rights and guarantees.
The topic is also under discussion by the commission responsible for revising and updating the Civil Code, although no specific provisions have been proposed thus far.
Therefore, these technological advancements require all of us to gain knowledge about the subject and its implications. This is not a distant scenario but a current reality. We must contribute to reflections on the appropriate boundaries to be considered in these developments so that they serve human advancement—rather than undermine the rights we have already secured.
Consultor Jurídico, July 12, 2024, 4:20 PM
https://www.conjur.com.br/2024-jul-12/implantes-cerebrais-e-os-neurodireitos/
