[author]LI Xueyao
[content]
author LI Xueyao
Abstract: More and more biotechnologists, ethicists, and jurists are advocating for the construction of a new concept of rights: neurorights, of which they have conducted in-depth discussions on the necessity, meaning, and function based on its core concepts including cognitive liberty, mental privacy, and personality integrity. In the global academia, the discussion on neurorights uses concepts similar to the Metaverse that can characterize the emerging state as a background to unfold the relationship between frontier technology and emerging rights. For this, it is necessary to go beyond the analytical perspective of systematic thinking and make a preliminary justification of neurorights. This study believes that we cannot use the standards of traditional industrial society to judge the serious threats to human rights and freedom by neuro-technology combined with intelligent technology; for the uncertain risks brought by frontier technology, we should innovate to construct or tolerate the "redundant" mechanism of rights protection; neurorights essentially belong to digital rights.
Key words: neurorights; cognitive freedom; mental privacy; Metaverse; neuro-technology; digital rights
The discussion of "neurorights" has been prompted by the widespread use of neurotechnology in practice, particularly in the areas of psychiatric intervention, criminal justice (e.g., polygraphs, therapy), the military, and education, which has led to far-reaching concerns about cognitive liberty, personality integrity and psychiatric privacy. Around the world, along with the deep integration of neurotechnology and smart technology and their wide range of commercial applications (e.g., "meta-universes", brain-computer interfaces), many people believe that neurological rights have become a practical necessity, and disciplines such as philosophy, ethics, jurisprudence, neuroscience, cognitive sciences, and medicine have become deeply involved in research on the subject. Neuroscientist Raphael Yuste, Chief Scientist of the BRAIN Initiative, has organised a group of neuroscientists to put forward the Neurological Rights Initiative, which seeks to persuade governments to enact laws on "neurological rights" in their domestic legal systems, in accordance with the Universal Declaration of Human Rights. The Organization for Economic Co-operation and Development International bodies such as the Organization for Economic Co-operation and Development (OECD), the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Organization of American States (OAS) are also working to define neurological rights as a new international human rights legal framework.
In the global academic community, the discussion of neural rights is not only triggered by the conceptualization of the "metaverse" of commercial consumption (more due to the application of Musk's capitalized brain computer interface technology), but this article deliberately identifies the controversial background of the "metaverse". The main reason is that only in a comprehensive application scenario of digital technology combining capital, power, and technology can we deeply understand the serious threat of exponential development of neural technology to rights. Recently, when criticizing the "metaverse fever" in the Chinese academic community, young scholar Qiu Yaokun mentioned that the "metaverse" is essentially a type of game product, and its governance can be reduced to the governance of data, algorithms, VR, blockchain, NFT, and other aspects (including brain computer interface technology). However, driven by capital appreciation and power enhancement, as a summary and integration of existing information technology, attention must be paid to the emergence phenomenon caused by the comprehensive development of technology, as well as the limitations of mainstream legal theories in normative legal sense in responding to such emerging changes. Before the existing legal research could fully restore the operational principles of the digital society to simple rules using complex system theory, simply adopting a "reductionist" approach and attempting to regulate the risks brought by cutting-edge technology within the existing rights system or legal regulatory framework would also lead to unpredictable risks. In view of this, this article attempts to explore the relationship between cutting-edge technology and emerging rights by using concepts similar to the metaverse that can represent emerging states as a background.
The content of this article is as follows: Firstly, a comprehensive review of the debate in the international academic community on the relationship between neural technology and rights, as well as the background of the proposal of neural rights. Secondly, a review of the academic history of the three key concepts advocated by advocates of neurological rights in establishing neurological rights - cognitive freedom, mental privacy, and personality integrity. Thirdly, go beyond the analytical perspective of systematic thinking and provide preliminary evidence for neural rights. In the following discussion, it is necessary to constantly pay attention to the different standards for the establishment of moral rights and legal rights.
1.Neurotechnology, Rights Challenges, and the Presentation of Neurorights
Over the past two or three decades, technology in the fields of neuroscience and neuroengineering has grown considerably and, fuelled by smart technologies, has expanded into areas outside of clinical medicine (e.g., criminal justice, military activities, and the consumer industry.) 2019 also saw a landmark event when Raphael Yuste used electrodes implanted in the brains of rats to enable the animals to see what was not actually there. As a result, Yuste, who started it all, explicitly warned that "if [neurotechnology] can read and record neural activity, it is also possible to read and record thoughts." In other words, controlling the minds of others through neurotechnology has become a reality. In relation to this, with the large-scale capitalisation of brain-computer interface technology (especially the concept of metaverse and Musk's application of brain-computer interface technology), it has in recent years raised a focal point in the global arena of public concern about the ethical issues associated with human brain interaction technology.
Along with the development of neurotechnology, many new disciplines have been spawned in the humanities and social sciences, such as neuroeconomics, neurolinguistics, neuroethics, and neurolaw. Among them, the studies with the mission of controlling and regulating the risks of neurotechnology are mainly neuroethics and neurolaw. The rise of the former, which is mainly concerned with therapeutic behaviours carried out using neurotechnology, occurred around 2002; the latter is much earlier, mainly due to the academic establishment in the 1990s as a result of the continued use of neurotechnology in criminal justice. At the beginning of the 21st century, research has focused on four themes: (1) ethical review of the use of cognitive enhancement drugs; (2) ethical review of the clinical use of neuroimaging techniques, particularly mind-reading; (3) the impact of neurotechnology on free will and the underlying theories of legal responsibility; and (4) the validity and admissibility of neuroscientific evidence.
From roughly 2001 to 2004, due to the practical needs of ethical review, it was natural to discuss the impact of neurotechnology, especially neuroimaging and cognitive enhancement technologies as mind-reading techniques, on the freedom of thought and conscience in the vein of neuroethics research, and gradually developed the concept of the emerging concept of "cognitive liberty" is a concept of rights. In the context of the theoretical debate over the existence of "freedom of will" or "cognitive liberty" in human beings, scholars of neuroethics defined cognitive liberty at the time as "the right and freedom to control one's own consciousness and electrochemical thought processes". rights and freedoms". The introduction of the concept of cognitive freedom was a landmark academic event that shaped the tradition of neurorights research.
The term "neurorights" and its connotations were first constructed by a group of biotechnology and artificial intelligence ethicists. Marcello Ienca and Andorno first introduced the concept of neural rights in April 2017 in a paper on the impact of neuroscience on rights. Ienca and his co-authors concluded that the existing system of rights is normatively insufficient to respond to the new issues raised by neurotechnology. As a result, they proposed new rights, such as "reconceptualization" or outright creation of neural rights, to protect people from potential harm. The publication of this paper gave rise to a heated debate with clear arguments for and against. The theoretical debate is still ongoing.
On the one hand, a growing number of scholars, mainly specialists in neurotechnology and related fields (e.g. bioethicists), are actively engaged in research to refine the connotations of the concept of neural rights. For example, Raphael Yuste and others organised a team of 25 researchers to publish a paper on the subject in Nature. They identified privacy and consent, agency and identity, augmentation, and bias as four areas to focus on in the future. They argue that "provisions to protect these rights (i.e., neurological rights) should be added to international human rights treaties." Currently, there are not only a large number of academic papers published every year to deepen the research on neurological rights, but also many concrete policies and legislative practices to advance.
On the other hand, the ethics and jurisprudence community, which focuses on the systematisation of rights theory and legislation, has shown a critical or reflective perspective on the concept of neural rights. The specific views are broadly: (1) not everything that is morally desirable should be conceptualised as a legal right. In the legal sense, the concept of neural rights is redundant, and there are already existing systems of rights that provide effective protection or are realised through a coherent interpretation of existing liberal rights; (2) neural rights advocates confuse "technological risk prevention" with "rights protection", and "protection of rights" due to technological risks. "Neurological rights protection is based on a neural technology that is still under continuous development, and the object of protection is "a part of the subject (i.e., the human brain, not the whole of the human body)," which is a typical Cartesian fallacy. After the rise of the concept of the metaverse, theoretical arguments against neurological rights have not been absent. This scepticism seems to have intensified after the step into 2023.
2. Neurotechnology and Cognitive Freedom
Cognitive freedom is the most central concept in neurorights theory. Initially defined by neurorights advocates as "the right and freedom to control one's own consciousness and electrochemical thought processes", the concept has recently been "generalised" to refer to an individual's freedom to control his or her own mental processes, cognition and consciousness. It is clear that the new definition is more in the nature of a "fundamental right". In the new conceptual framework, freedom of conscience, freedom of thought, freedom of the soul, free will, etc. become subordinate to cognitive freedom. As a result, neurological advocates have expanded the debate on cognitive freedom from neuroethics to a wider academic space involving philosophy, sociology, jurisprudence, political science, international relations, etc., and traced its theoretical origins to the Enlightenment period, and even to ancient Greek and Indian philosophy.
For example, some neurological rights advocates have argued that the earliest legislative activity to guarantee cognitive freedom was in the third century B.C.E., when King Ashoka of the Peacock Dynasty issued a decree promoting respect for "freedom of conscience". Some scholars also believe that the concept of cognitive freedom was already articulated by the Stoic philosopher Epictetus. For example, his famous line, "There is no morality in denying the freedom of the will," is a brilliant illustration of cognitive freedom. Since much of the classic discussion of freedom is centred on the modern Enlightenment period, neurological rights advocates, in arguing for cognitive freedom, have "attached" it to several of the heady concepts of that period. They argued, for example, that Roger Williams' 17th-century articulation of the "freedom of the soul," i.e., "the God-given birthright of man to make choices in matters of faith," was cognitive freedom. This concept evolved into the notion of "freedom of religion", which was enshrined in the Universal Declaration of Human Rights. In addition, neurological rights advocates have argued that the terms freedom of conscience, as mentioned by John Milton, freedom of will, as articulated by Locke and others, and freedom of thought, as articulated by Hobbes and Montesquieu and others, are additional expressions of cognitive freedom.
Through the relational construction of subordinate rights systems or the argument of conceptual homogeneity, neurorights advocates have also attempted to establish cognitive freedom through jurisprudence. For example, neurological rights advocates have repeatedly invoked the importance of freedom of thought as argued in the majority opinion in Palko v. Connecticut, written by Justice Cardozo. In that judgement, Justice Cardozo argued that freedom of thought is the cornerstone and indispensable condition of all freedoms. They further argued that cognitive freedom is an important element of fundamental rights in judicial practice by using the conflation of freedom of mind and freedom of thought and the conflation of freedom of thought and freedom of expression in American judicial judgements. For example, they are keen to cite the judge's 2003 judgement in Doe v. City of Lafayette, Indiana (Doe v. City of Lafayette, Indiana, 2003) as stating that "the First Amendment confers a right to freedom of thought".
The creators of the concept of neurological rights, such as Ianca and Andono, on the one hand, subsumed the theoretical origins of freedom of expression under those of cognitive freedom, and on the other hand, they tried to adopt an analytical perspective to order them in terms of normative structure. Their normative-structural account differs from the above scholars' construct of the relation between inclusion and entailment, but rather in the temporal dimension, arguing that cognitive freedom precedes any other freedom in chronological order, and that it is in a complementary relationship with the other concepts of freedom.
In the lineage of jurisprudential or neurolegal studies, cognitive freedom has come relatively later from a normative perspective. For the rise of neurotechnology, mainstream jurisprudence in the sense of normative jurisprudence (generally excluding criminal psychology and other similar interdisciplinary disciplines of jurisprudence) was initially concerned with the impact of the results of empirical tests of freedom of consciousness carried out by using neurotechnology (for example, the famous Libet experiment) on the "human dignity" and "freedom of the will" on which mainstream jurisprudence is based. "Freedom of the will" and rights, which are the foundational theories on which mainstream legal theory is based. While neuroethicists have long recognised that cognitive freedom implies a corresponding normative requirement, i.e. the existence of a corresponding "fundamental right", and Sententia, for example, has argued directly that cognitive freedom "is the necessary foundation for almost all other freedoms", jurists have been slow to recognise that cognitive freedom is "a necessary foundation for almost all other freedoms", but jurists have been slow to recognise it. Sententia, for example, argued directly that cognitive freedom "is the necessary foundation for almost all other freedoms", but it was not until 2012 that jurists began to respond to this question. Professor Nita Farahany of Duke University has conducted a theoretical analysis of the self-incrimination clauses of the Fourth and Fifth Amendments to the US Constitution, and has further argued at the level of the philosophy of law for the theoretical proposition that cognitive freedom should be recognised as a fundamental right, with an in-depth exploration of its relationship to the content of traditional rights such as the right to privacy and the right to self-determination, and its innovations. In addition, many other legal practitioners have recognised cognitive freedom as a right in the legal sense of the word, i.e. "a fundamental human right that guarantees the sovereignty of the individual over his or her own mind", without any argumentation, and have further promoted relevant legislation at the international level. To date, freedom of cognition has not been included in international human rights treaties, but it is recognised to a limited extent in the legislative practice of countries such as Argentina and the United States, and is considered to be the basis of many universally recognised rights.
3. Neurotechnology and the Right to Psychic Privacy
The proposed right to psychiatric privacy is largely based on the development of neurotechnological mind-reading, and in particular the rapid advancement of various technologies for writing, recording and decoding neuroinformation. The definition of privacy by neurorights advocates can be broadly summarised as brain-mind domains and data-processing technologies designed to reveal information about a person's mental processes or neurological health; its challenges to privacy include both predictive analyses of primary neurological data (e.g., brain recordings) and inferences based on secondary data (e.g., phenotypic or behavioural data) through techniques such as affective computing. The right to mental privacy points primarily to the cognitive processes of a person's brain, including sensations, imagery, emotions, intentions, perceptions, decision-making, and other information about an individual's mental state, and corresponds to the process of neural activity patterns.
Discussions of mental privacy in the neurological rights sense come mainly from neuroethical discussions. They are particularly concerned with whether the issue of protecting the privacy and security of brain data should be part of the human rights framework and legislation. In contrast, jurisprudential concerns about mental privacy have mainly been developed in the context of criminal justice, for example, in the areas of criminal psychology, freedom of will, and the feasibility of polygraphs, which are mentioned incidentally. In addition, jurisprudence is also concerned with the discussion of the privacy rights of the mentally challenged.
Neurological rights advocates, like cognitive liberty, have "appended" the academic history of psychiatric privacy to the study of cognitive liberty. For example, they cite historian J.B. Bury's study of the close connection between mental privacy and freedom of thought. In The History of Freedom of Thought, Bury argues that "a man can never be prevented from thinking anything he chooses, so long as he keeps his thoughts hidden." This suggests that exercising one's right to mental privacy (i.e., hiding one's thoughts) is necessary for the full exercise of the right to freedom of thought and is a prerequisite for cognitive freedom. They also argue that in today's digital world, the right to privacy has come to be associated with entirely new fields and methods of information processing, unimaginable in the 20th century. Unfortunately, however, the dominant theories of the right to privacy come from people in the 20th century themselves, such as judges like Brandeis and Warren, the drafters of the Universal Declaration of Human Rights, and so on.
Mind-reading in the sense of existing neurotechnology has already made it possible to read people's psychological preferences, empathic responses, etc. In 2013, scientists were able to not only monitor brain activity by probing the P300 brainwaves, but also gained access to the secret information the brain has about an individual's beliefs. Raphael Yuste and other scientists believe that "it is already possible to obtain a considerable amount of personal information from people's data profiles" and that "citizens should have the ability and the right to keep their neurological data private". Given the security vulnerabilities of neural devices, the privacy of neural data, and the inferential potential of advanced data analytics, neurological rights advocates have proposed that the right to privacy should be reinterpreted from an evolutionary perspective, and that a subright of privacy, "mental privacy," should be directly recognised; mental privacy would explicitly protect an individual against the non-consensual intrusion of their mental information (whether from a third party) by a third party. from third party intrusion into their psychological information (whether inferred from their neural data or from proxy data indicative of neural, cognitive and/or affective information) and the unauthorised collection of such data.
In the discussion of the right to mental privacy, scholars also compare it to the right to privacy in the sense of digital rights. There are many scholars who argue that neurotechnological mind-reading is not as scary as people think or as depicted in science fiction films. The biggest impact on the formation of human privacy rights is the big data and other kinds of smart technologies that are formed to analyse sensitive information about our mental processes, states and temperaments by accessing non-neurological data and further intervene in our behaviour. Thus, it is the right to privacy in the sense of digital rights that needs to be regulated urgently, compared to the lesser importance of the so-called right to mental privacy.
In response, neurological rights advocates have often countered this by applying the Colinridge Dilemma. According to the understanding of the Colinridge Dilemma, the impact of a technology cannot be easily predicted until it is widely developed and used, but at the same time, when the technology is embedded in social relations, it becomes difficult to control or regulate it, thus requiring us to carry out forward-looking legislation. The discussion on neurological rights is actually an idea of forward-looking legislation to break through the Colinridge dilemma. But forward-looking legislation presupposes that there is sufficient certainty in the prediction of the development of a particular technology. In the case of neuroprivacy alone, neurorights advocates argue that because neurotechnology is steadily on its way to becoming a mature mind-reader, its regulation qualifies as forward-looking legislation. Indeed, the latest technological developments all make the future of neurotechnology and its possible implications seem clear. In addition, there are research methods that have been shown to recognise specific images that a person has seen from a large number of brand new natural images. Even a team of Chinese-American scientists working in the United States have managed to decode the categories of objects a person perceives when watching a film or moving image.
Neurorights advocates further illustrate the importance of the right to mental privacy through philosophical musings. All forms of privacy ultimately rely on the mental processing of personal information. In other words, only information that is psychologically considered private is considered private. For example, being seen at home in a bikini is a privacy breach, but if one is at the beach, even if one reveals more of one's body, one does not feel that privacy has been offended. To put it in academic terms: privacy is defined in part by controlling the flow of information about oneself; the subject of rights is able to determine when, how, and to what extent information about oneself is communicated to others; and privacy depends on this cognitive process of rationally filtering and selectively sharing information about us. Mind-reading through neurotechnology would render the cognitive mechanisms of privacy described above meaningless, so that the right to mental privacy is far more important than other privacy rights.
4. Neurotechnology and the Right to Personal Integrity (Mental Integrity)
Neuro-rights advocates also argue that the latest technological advances in manipulating brain activity may also alter personal identity and, therefore, should also protect the integrity of the human personality and mind. Intuitively, the right to personal integrity refers to the protection of the integrity and inviolability of the brain's structure and function (and associated mental experiences). However, there are some differences in academic definitions. Broadly speaking, they can be divided into the prevention of harm and the control of self (or negative and positive rights), i.e. the negative right to prevent unauthorised brain interference and the positive right to seek intervention to shape the condition of one's brain.
The main exponents of the former are Ianca and Andono, the originators of the concept of neurological rights. Their approach is to conceptualise the right to personal integrity on the basis of the "right to physical and mental integrity" provided for in Article 3 of the EU Charter of Fundamental Rights. According to them, the right to integrity is a negative right that focuses on the protection of the individual against unauthorised and potentially harmful interference with the brain in order to prevent physical/psychological harm. The control of self doctrine is represented by Elizabeth Shaw, Lavazza, and others. For example, Shaw argues that the right to personal integrity includes the right to maintain a certain mental state of the self. Lavazza, on the other hand, argues that "mental integrity is the individual's mastery of his or her mental state and brain data. That is, no one can read, disseminate, or alter these states and data without the individual's consent, thereby limiting the individual in any way." In contrast to the prevention of infringement theory, the control of self theory has a distinct positive rights flavour, in addition to proposing to regulate interventions aimed at altering brain states, but also focusing on issues related to privacy, data protection and data sharing.
The right to personal integrity is closely related to the system of informed consent, which is one of the main points of contention between neurological rights advocates and traditional human rights scholars. Traditionally, informed consent has been used primarily in medical scenarios, involving patients formally agreeing to medical interventions after thoroughly understanding the benefits and risks of the medical intervention. Informed consent is generally characterised by the principles of voluntariness, full transparency, independent decision-making, freedom to opt out, limitation of data use to specific purposes, and assistance for those who lack capacity. Informed consent has also become a core institution in areas such as personal information protection and platform regulation, and has taken on the nature of gatekeeper regulation at a time when big data and smart technologies are evolving. Neurorights advocates argue that the informed consent regime can become vague and opaque in the context of neurotechnology. For example, the issues behind neurointerventions for criminals, soldiers, and others with restricted freedoms are particularly complex, where the effective functioning of the voluntary consent system is in serious doubt. In addition, "neurohacking" and other forms of neurotechnological abuse of the brain through cyber-intrusion would not in fact be subject to a system of informed consent, rendering such a system, which is based on the traditional tort system, ineffective.
The discussion of identity or mental integrity also involves the modification of personal characteristics by neurotechnology and the resulting identity of the individual. neurotechnologies such as DBS (Deep Brain Stimulation) and tDCS (Transcranial Direct Current Stimulation) have the potential to alter an individual's behaviour, mood or personality. As these technologies continue to evolve, there is a growing concern about the emergence of identity perception problems similar to those seen in the film Who Am I? More importantly, the application of brain-computer interface technology in residual limb rehabilitation has already seen the emergence of issues related to body schema perception. As a complex philosophical concept, personhood sameness discusses issues such as what makes a person persevere through time, what are the core characteristics of an individual's identity, and, given certain changes in an individual's characteristics, whether or not a person remains the same as he or she was prior to the neurotechnological intervention. Some neurological rights advocates have suggested that this separation should be generalised into a fourth category of neurological rights, namely the right to homogeneity of personality. Ianca and Andono, for example, use the notion of psychological continuity interpretation to develop an account of the problem of personhood identity, referring to this type of right as the "right to psychological continuity", describing it as the right to protect "the identity of the individual and the continuity of his or her mental life against external changes by third parties without consent". The right to psychological continuity". In contrast, Raphael Yuste and others have argued for the construction of a "right to identity" for this purpose, i.e. "the capacity to control one's physical and mental integrity".
The discussion of the content of the right to personal integrity needs to be contextualized and differentiate between specific neurotechnology. For example, a distinction should be made between non-invasive and invasive neurotechnology. The former is based on the current commercialized "meta-universe" application scenario; the latter is widely used in brain-computer interface robotic arms. In terms of the right to freedom of removal in the right to personal integrity (i.e., the patient or subject is free to withdraw at any time without fear of negative consequences), non-invasive neurotechnology can easily remove or turn off the relevant neuro-intervention devices or measures, whereas the situation for invasive neurotechnology is much more complex, and in addition to allowing for the removal of the device with minimal health risks, the safety of the relevant software or algorithms must also be taken into account.
Similarly to the study of cognitive liberty and the right to privacy, advocates of neural rights also pay particular attention to the relevance of the right to integrity of the person to some of the classical theories of rights. Advocates of neural rights argue that "the right to mental integrity is closely related to general concepts such as liberty and autonomy ...... which are of special importance in the Western philosophical, political, and legal traditions." They argue that mental integrity constitutes a right because it is a prerequisite for the possibility of values that make human beings human (such as freedom, autonomy and agency); "According to many ethical theories, personal identity is crucial for the attribution of moral responsibility. Therefore, ICT devices should not be used to manipulate mental functions or alter personal identity. The right to respect for human dignity, including the right to respect for physical and mental integrity, underlies this." In summary, advocates of neural rights argue that interfering with (or harming) personality and mental integrity specifically affects a person's personal identity and, by extension, undermines the possibility of autonomy, agency and intimacy.
At the international legislative level, the legislative advancement of the right to personal integrity dates all the way back to 2005. At that time, a "European Group on Ethics in Science and Technology" proposed the initiative: "ICTs implanted in the human body should not be used to alter personal identity and manipulate psychological functions." This conception holds that the right to human dignity includes the right to respect a person's physical and mental integrity. Advocates of neural rights argue that the right to mental integrity is protected by the EU Charter of Fundamental Rights, which states in Article 3 that "everyone has the right to respect for his or her physical and mental integrity." The EU Charter of Fundamental Rights highlights four requirements in particular: autonomous and informed consent, non-commercialization of body composition, prohibition of eugenic practices and human reproductive cloning. However, the document does not explicitly mention specific harms caused by neurotechnology-related practices or malicious interference with the neuropsychological realm of the human being.
In Chile, a country rich in neuroscientists, the right to personal integrity is also enshrined in the constitution along with other neurological rights. An amendment to the Chilean constitution adopted in 2021 states in article 19, paragraph 1, that "the development of science and technology for the benefit of mankind shall be carried out with respect for life and physical and mental integrity. Technology shall be used on the human body in strict compliance with the conditions and limitations set by law, particularly to protect brain activity and the information it generates." During the legislative process, the promoters of legislative drafting made it clear: "Physical and mental integrity enables people to fully enjoy their personal identity and freedom. No authority or person may increase, decrease or interfere with said personal integrity through any technological mechanism without proper consent." Thus, the Act Establishing Neuroprotection (Proclamation 13.828-19), passed by the Chilean Parliament, explicitly states, "It is prohibited to use neurotechnology, brain-computer interfaces, or any other system or device for any form of intrusion or interference with neuronal connections, or at the brain level, without the free, express, and informed consent of the individual or user of the device , even in a medical situation."
5. A Review of the Theory of Neuro Rights Initiative
By organizing the content related to neurorights research, it is possible to isolate three theories that approach neurorights research: conservatism, reformism, and innovatism.
First, those who are conservative are mainly scholars of normative law or human rights scholars, whose main view is that the existing system of rights is sufficient to cope with the impact of neurotechnology and smart technology, and therefore they are in fact opposed to digital rights as well.
Secondly, reformist scholars are often those engaged in the intersection of law and scientific and technological innovation, who, on the one hand, agree that cutting-edge technologies, such as neurotechnology, have caused serious impacts on the existing human rights system and rights protection, but, on the other hand, based on the idea of preventing rights from becoming "inflationary", they tend to be opposed to the creation of new rights similar to digital and neurological rights and believe that the problems can be solved by re-interpreting concepts such as the right to freedom of the mind through legal interpretation.
Third, revolutionist scholars, including the neurorights advocates highlighted in this paper, come mainly from the neurotechnology or applied ethics communities (e.g., those engaged in ethical review), as well as legal scholars from Latin-speaking countries (e.g., from Chile, Spain, and so on), who have generally argued from a neuroethical point of view in a moral-rights sense, with little attention paid to the difference between moral and legal rights, and who, as a result, have been more resolute in advancing the importation of neurorights concepts and normative content into international treaties and domestic legislation.
Our basic view on this is:
First, the development of digital and biotechnological technologies is threatening the cognitive freedom, mental privacy and personal integrity of human beings in a way and with an intensity not seen in traditional industrial societies, and it is true that the problem cannot be fully solved with the help of the previous normative system of rights. The roots of such problems are determined by a certain emergence of the impact of digital or neurotechnological developments on social relations. To put it in hyperbolic terms, at a time when it is no longer a fantasy that a toy laser gun can shoot down the moon, or that human beings can be conceived in laboratory containers, it is necessary to revolutionize traditional theories of rights and justice (for example, by revising the principle of “Absence of Legal Prohibition Means Freedom”). It is also necessary to be very wary of a certain conservative view of rights based on the tradition of legal analysis.
Secondly, the neural rights elaborated on the basis of existing theories are still seriously flawed in terms of regulation. With the exponential development of brain-computer interface technology, there is a real need for a normative interpretation or a complete revolution of the system of rights to adequately regulate the digital age related to the freedoms or rights in the realm of the human mind and brain. However, the new challenges to freedom of thought posed by academically emerging technologies (such as neurotechnology and artificial intelligence) and clarifying the outward manifestation or externalization of the idea of protection, such as religion, belief and expression, in relation to the protection of thought itself, leaves much room for academic exploration. Moreover, as we pointed out in the first point, the current problem of inadequate rights protection triggered by the development of science and technology cannot be blamed only on the deficiencies of the original rights system or the insufficient evolution of the theory, but we should see that we need to go beyond the rights paradigm or the infringement system, and to realize it through regulation and other methods of governance that go beyond the rights paradigm.
Thirdly, neural rights are essentially a digital right. In terms of its impact on human life, neurotechnology, which is a biotechnology, has been developing exponentially with the help of smart technology in modern times, and it is essentially a data technology. Therefore, if "neural rights" can be proved, they are also essentially "digital rights". The technology that reads, analyzes, controls and intervenes our mental processes, thus threatening the above-mentioned rights, is not only neurotechnology, but also comes from a wider range of digital technologies that apply the theories and methods of neurotechnology. Therefore, we need to deeply understand "neural rights" from the perspective of digital technologies. Unlike the centrality of the temporal dimension in human decision-making (especially judicial decision-making), algorithms deal with large-scale data in a non-historical and non-temporal way (e.g., predictive), and thus it conflicts with the normativity of the law, and it is not enough to limit the impact of biotechnology on the law to the ethical level, but also to theoretically unfold the law in a juridical sense in a complex systems perspective.
Fourth, there is still much room for improvement in the operationalization of neuralrights. Overall, unlike digital rights, the current discussion on neuralrights is mainly conducted by scholars outside the legal profession, and there is a lack of interdisciplinary collaboration. To enable the study of neurorights to progress and have a coherent impact on policy, it needs to overcome the current problem of ambiguity and semantic inconsistency, which requires the precise naming, definition and interpretation of these neurorights. Without common terminology, semantic disambiguation and conceptual harmonization, neurorights-based initiatives are unlikely to result in effective national and international policies. Of course, this harmonization process should not obliterate different perspectives, but should incorporate them in a pluralistic and consultative democratic manner. It should, however, ensure that the neuralrights claims are fully reflective, conceptually clear and explicit, normatively rational, and rooted in moral philosophy and existing legal systems.
Fifthly, the proof of emerging rights should not be confined to a logical analytical perspective or a purely conceptual interpretation, but should be based on needs first and system second. Particularly with regard to the great uncertainty brought by cutting-edge science and technology, in order to avoid "unpredictable omissions in the protection of rights", we should intentionally construct or tolerate a "redundant" mechanism of rights protection. Of course, we do need to avoid "rights inflation," that is, labeling everything morally desirable as a "right" can lead to a devaluation of rights and an absence of their normative force, and so we should avoid the irrational proliferation of new rights, diluting them to purely moral desires or purely rhetorical demands. In other words, rights inflation should be avoided as much as possible, and rights should be used to protect a set of truly basic and important human interests, rather than covering everything that is desirable or beneficial in an ideal world. The most economical approach would be to recognize neural rights as progressive interpretations of existing rights, while at the same time applying a rigorous test of justification to assess whether they in fact constitute new rights. For example, applying the test of legitimacy for preventing the inflation of rights that has been proposed by some scholars: whether it reflects a fundamentally important social value, whether it is consistent with the existing body of international human rights law, whether it is capable of achieving a high degree of international consensus, and whether it is sufficiently precise to create identifiable rights and obligations (i.e., operationalizable). In the absence of a better concept, the "right to freedom of mind" or "right to freedom of thought", as set out in the International Covenant on Civil and Political Rights and the European Convention on Human Rights, could be used and protected by means of legal interpretation.
Conclusion: A long way to go in neurorights research
In China, the infringement of individual rights in the research and application of neurotechnology and the ethical controversies it has triggered have not received enough attention from the legal community. In 2019, an elementary school classroom in Zhejiang Province introduced the "Fusi head ring" to collect electroencephalogram (EEG) signals to monitor students' concentration during class, which was quickly suspended but did not lead to extensive legal discussions. Of course, neurotechnology is still evolving, so questions about its legal regulation and the consequent proofing of new rights remain to be answered by continued observation. But in any case, as neurotechnology continues to evolve, there is an irresistible tendency for the existing legal order will change as a result.