This paper analyses recent calls for so called “neurorights”, suggested novel human rights whose adoption is allegedly required because of advances in neuroscience, exemplified by a proposal of the Neurorights Initiative. Advances in neuroscience and technology are indeed impressive and pose a range of challenges for the law, and some novel applications give grounds for human rights concerns. But whether addressing these concerns requires adopting novel human rights, and whether the proposed neurorights are suitable candidates, are a (...) different matter. This paper argues that the proposed rights, as individuals and a class, should not be adopted and lobbying on their behalf should stop. The proposal tends to promote rights inflationism, is tainted by neuroexceptionalism and neuroessentialism, and lacks grounding in relevant scholarship. None of the proposed individual rights passes quality criteria debated in the field. While understandable from a moral perspective, the proposal is fundamentally flawed from a legal perspective. Rather than conjuring up novel human rights, existing rights should be further developed in face of changing societal circumstances and technological possibilities. (shrink)

This paper argues that calls for neurorights propose an overcomplicated approach. It does this through analysis of ‘rights’ using the influential framework provided by Wesley Hohfeld, whose analytic jurisprudence is still well regarded in its clarificatory approach to discussions of rights. Having disentangled some unclarities in talk about rights, the paper proposes the idea of ‘novel human rights’ is not appropriate for what is deemed worth protecting in terms of mental integrity and cognitive liberty. That is best thought of (...) in terms of Hohfeld’s account of ‘right’ as privilege. It goes on to argue that as privileges, legal protections are not well suited to these cases. As such, they cannot be ‘novel human rights’. Instead, protections for mental integrity and cognitive liberty are best accounted for in terms of familiar and established rational and discursive norms. Mental integrity is best thought of as evaluable in terms of familiar rational norms, and cognitive freedom is constrained by appraisals of sense-making. Concerns about how neurotechnologies might pose particular challenges to mental integrity and cognitive liberty are best protected through careful use of existing legislation on data protection, not novel rights, as it is via data that risks to integrity and liberty are manifested. (shrink)

Neurorights, as “new human rights,” have been increasingly recognized in the literature. In the Neurorights Initiative, these rights are supposed to be directed toward mental privacy, free will, pe...

Progress in neurotechnology and Artificial Intelligence (AI) provides unprecedented insights into the human brain. There are increasing possibilities to influence and measure brain activity. These developments raise multifaceted ethical and legal questions. The proponents of neurorights argue in favour of introducing new human rights to protect mental processes and brain data. This article discusses the necessity and advantages of introducing new human rights focusing on the proposed new human right to mental self-determination and the right to freedom of thought (...) as enshrined in Art.18 International Covenant on Civil and Political Rights (ICCPR) and Art. 9 European Convention on Human Rights (ECHR). I argue that the right to freedom of thought can be coherently interpreted as providing comprehensive protection of mental processes and brain data, thus offering a normative basis regarding the use of neurotechnologies. Besides, I claim that an evolving interpretation of the right to freedom of thought is more convincing than introducing a new human right to mental self-determination. (shrink)

The intersection of AI and neurotechnology has resulted in an increasing number of medical and non-medical applications and has sparked debate over the need for new human rights, or “neurorights,”...

Neurorights were first articulated in response to perceived threats from advances in neurotechnology and artificial intelligence (AI). They purport to protect people’s cognitive capabilities agains...

In their interesting paper, Susser and Cabrera (2024) apply the contextual integrity framework to brain data and mental privacy. This framework, developed by Nissenbaum (2009) and rooted in digital...

The rise of neurotechnologies, especially in combination with artificial intelligence (AI)-based methods for brain data analytics, has given rise to concerns around the protection of mental privacy, mental integrity and cognitive liberty – often framed as “neurorights” in ethical, legal, and policy discussions. Several states are now looking at including neurorights into their constitutional legal frameworks, and international institutions and organizations, such as UNESCO and the Council of Europe, are taking an active interest in developing international policy and (...) governance guidelines on this issue. However, in many discussions of neurorights the philosophical assumptions, ethical frames of reference and legal interpretation are either not made explicit or conflict with each other. The aim of this multidisciplinary work is to provide conceptual, ethical, and legal foundations that allow for facilitating a common minimalist conceptual understanding of mental privacy, mental integrity, and cognitive liberty to facilitate scholarly, legal, and policy discussions. (shrink)

The development and use of advanced and innovative neuroscience, neurotechnology and some forms of artificial intelligence have exposed potential threats to the human condition, including human rights. As a result, reconceptualizing or creating human rights (i.e. neurorights) has been proposed to address specific brain and mind issues like free will, personal identity and cognitive liberty. However, perceptions, interpretations and meanings of these issues—and of neurorights—may vary between countries, contexts and cultures, all relevant for an international-consensus definition and implementation (...) of neurorights. Thus, we encourage reflecting on the proactive inclusion of transnational, cross-cultural and contextual considerations and concerns to contribute to the global discourse. This inclusion does not mean endorsing ethical relativism but rather a call to foster a universal understanding of key concepts and concerns. Including contextual and cultural perspectives may truly anticipate global concerns which could be addressed while developing and implementing neurorights. Consequently, any ethical and/or legal regulatory framework(s) for the translational and transnational use of advanced neuroscience, neurotechnology and some forms of artificial intelligence intended to protect and safeguard human dignity should be contextually and culturally mindful, responsible, respectful and inclusive of not only human rights and fundamental freedoms but also of neurocognitive cultural diversity. (shrink)

As Herrera-Ferrá et al. (2023) carefully explain, the contentious legacy of human rights should not prevent the re-crafting of particular ethico-legal responsibilities and obligations focal to the...

In their article, Herrera-Ferrá et al. (2023) mention the publication by Yuste et al. (2021) where they pointed out that “currently, there is no international consensus on what constitutes neuro-ri...

As scholars envision a new regulatory or statutory neurorights schema it is important to imagine unintended consequences if reforms are implemented before their implications are fully understood. This paper critically evaluates provisions proposed for a new Chilean Constitution and evaluates this movement against efforts to improve the diagnosis of, and treatment for, individuals with disorders of consciousness within the broader context of disability law, international human rights, and a capabilities approach to health justice as advanced by Amartya Sen and (...) Martha Nussbaum. Framed in this way, any neurorights regime would need to satisfy several criteria. First it would be obliged to balance both positive and negative rights in the furtherance of human capabilities. Second, it would need to be future oriented and informed about the science it sought to regulate and not fall prey to science fiction fantasies that remain ungrounded in reality. Third, it would need to be specific and avoid generalizations that would lead to conceptual confusion and litigation that could delay scientific progress. Finally, it would need to harmonize novel neurorights with long-established norms in international disability and human rights law. A failure to meet these criteria will destine any novel neurorights regime to the periphery. At this juncture Chile’s nascent constitutional venture into neurorights fails to satisfy these criteria. While there yet may be a role for a more capacious and bivalent articulation of neurorights that account for capabilities and precedent, the current Chilean neurorights reforms are vague and premature. As such they should undergo additional scholarly scrutiny and should not be adopted by other jurisdictions. (shrink)

Despite its obvious advantages, the disruptive development of neurotechnology can pose risks to fundamental freedoms. In the context of such concerns, proposals have emerged in recent years either to design human rights de novo or to update the existing ones. These new rights in the age of neurotechnology are now widely referred to as “neurorights.” In parallel, there is a considerable amount of ongoing academic work related to updating the right to freedom of thought in order to include the (...) protection of “freedom of thinking” (i.e., freedom of thought itself) and not only its social manifestations. Neurorights such as cognitive liberty, free will, mental freedom, and mental self-determination come into play here. Importantly, freedom of thought has often been considered a prerequisite for all the other fundamental freedoms and rights. In any case, just as other rights require additional legal instruments to guarantee their compliance, substantial neurorights will probably require specific complementary developments in procedural law. In relation to this, there is a long tradition of habeas corpus as an emergency remedy to enforce the rights of a citizen against illegal or arbitrary detention. More recently, the habeas data writ has been proposed and admitted in certain countries to guarantee a person’s ownership of their personal data. In this article, we propose to expand this procedural apparatus by incorporating a third habeas, which we call habeas cogitationem: a writ aimed primarily at enforcing the right to freedom of thinking (and, subsidiarily, the rest of neurorights) against direct, harmful interferences in a person’s thought process by both public and private perpetrators. (shrink)

After examining some of the most fundamental aspects of the general concept of ‘neuroright’ in the current discussion, this paper analyzes the concept of ‘the mental’ contained in the very first law of neurorights in the world currently under discussion in the Senate of the Republic of Chile (Bulletin 13.828-19 of the Chilean Senate). It is claimed that the lack of specificity of the target notion might not only posit difficulties for the creation of specific legal frameworks for the (...) protection of subjects from potential misuses of neurotechnologies with access to neural data, but it might also make very difficult the process of decision-taking when interpreting the law. (shrink)

This issue’s target articles cover some of the most hotly debated topics in neuroethics: neurorights and the potential establishment of international governance frameworks for neurotechnology. The...

In this article, we propose a philosophical exploration on the main problems involved in two neurorights that concern autonomous action, namely free will and cognitive liberty, and sketch a possible solution to these problems by resourcing to a holistic interpretation of human actions. First, we expose the main conceptual and practical issues arising from the neuroright to “free will,” which are far from minor: the term itself is denied by some trends participating in the neurorights debate, the related (...) concept of ultimate control is also disputed, the understanding of free will depends on cultural context, and the exercise of being free to act in several domains may be covered by other regulations. Second, we analyze the historical origin of cognitive liberty, its current status, and its relation with free will. Third, we criticize the concept of decision in mainstream action theory and propose to conceive action as a unified process constituted by three explanatory, non-sequential dimensions: intention, decision, and action realization. Fourth, we discuss two possible cases involving neurotechnologies and suggest ways to interpret them according to a unified framework in which free will and cognitive liberty fall under a single neuroright to personal autonomy. Finally, we outline a recommendation to introduce freedom of thought and personal autonomy as complementary neurorights to protect both the internal and external dimensions of thought and action. (shrink)

Herrera-Ferrá et al.’s (2023) attention to the cultural context of the neurorights movement contributes to the growing conversation on establishing neurorights in response to advancements in neuros...

With the rapid advance in emerging neuroscience and neurotechnology, scholars and practitioners have urged the necessity of a governance framework and promoted the notion of “neurorights.” It refer...

Thomas Aquinas holds that the actual content of our thought is not accessible for any creature, and that free will cannot be superseded. These theses are founded on the spiritual condition of our intelligence and will, which makes them directly invulnerable to any intervention on our body. On the other hand, he enthrones the will as the keeper of interiority: it precludes a full transparency that would make our free decision to communicate superfluous, and it exert an inalienable control over (...) the action through which we direct ourselves to the good. In this sense, Aquinas departs from reductionist accounts, which either refuse the existence of free will, suppressing the reason to protect its expression, or face the difficulty of explaining the meaning and justification of the rights that are claimed for free will. However, Thomas Aquinas admits the possibility of indirectly accessing our minds through the knowledge of brain states and of influencing our will through passions by means of alterations of our organisms. Although this possibility was not within the reach of the human being in his time, he considered it was within the reach of separated substances. The consideration of the limits of their perspicacity and control sheds light on the possibilities that neurotechnology can allow in the future. The existence of an unassailable stronghold that guarantees our interiority and free will legitimates our right to be respected but does not make their protection superfluous. (shrink)

In their article, Herrera-Ferra et al. (2023) highlight how the progress and implementation of neurotechnology, especially in conjunction with artificial intelligence, have revealed potential impli...

One of the most prominent ethical concerns regarding emerging neurotechnologies is mental privacy. This is the idea that we should have control over access to our neural data and to the information about our mental processes and states that can be obtained by analyzing it. A key issue is whether this information needs more stringent protection than other kinds of personal information. I will articulate and support the view, underlying recent regulatory frameworks, that mental privacy requires a special treatment because (...) of its relation to relevant aspects of personal identity. It has been suggested that this approach could be supported by the idea that mental privacy constitutes a fundamental psychological dimension of privacy. The connection between this psychological view of privacy and identity can be traced back to Irwin Altman’s idea that privacy is an interpersonal boundary regulation process. However, it is not clear whether this notion of privacy can be associated with a conception of identity that is relevant in contemporary neuroethics. I will suggest that the narrative and relational approach to identity, a prominent view in recent ethical discussions of neurotechnology, lines up with key aspects of Altman’s proposal. I suggest that if mental privacy is an essential component of identity, the latter could be affected by technological mind-reading. (shrink)

International institutions such as UNESCO are deliberating on a new standard setting instrument for neurotechnologies. This will likely lead to the adoption of a soft law document which will be the first global document specifically tailored to neurotechnologies, setting the tone for further international or domestic regulations. While some stakeholders have been consulted, these developments have so far evaded the broader attention of the neuroscience, neurotech, and neuroethics communities. To initiate a broader debate, this target article puts to discussion twenty-five (...) considerations and desiderata for recognition by a future instrument. They are formulated at different levels of abstraction, from the big picture to technical details, seek to widen the perspective of preparatory reports and transcend the narrow debate about “neurorights” which overshadows many richer and more relevant aspects. These desiderata are not an exhaustive enumeration but a starting point for discussions about what deserves and what requires protection by an international instrument. (shrink)

Intelligent neurotechnology is an emerging field that combines neurotechnologies like brain-computer interface (BCI) with artificial intelligence. This paper introduces a capability framework to assess the responsible use of intelligent BCI systems and provide practical ethical guidance. It proposes two tests, the threshold and flourishing tests, that BCI applications must meet, and illustrates them in a series of cases. After a brief introduction (Section 1), Section 2 sets forth the capability view and the two tests. It illustrates the threshold test using (...) examples from clinical medicine of BCI applications that enable patients with profound disabilities to function at a threshold level through computer mediation. Section 3 illustrates the flourishing test by exploring possible future applications of BCI involving neuroenhancements for healthy people, using examples adapted from research currently underway in the US military. Section 3 applies a capability lens to a complex case involving dual effects, both therapeutic and non-therapeutic, showing how the threshold and flourishing tests resolve the case. Section 4 replies to three objections: neurorights are the best tool for assessing BCI; the two tests are moving targets; and the analysis utilizes a capability view to do work it is not designed for. The paper concludes that a capability view offers unique advantages and gives practical guidance for evaluating the responsible use of present and future BCI applications. Extrapolating from our analysis may help guide other emerging technologies, such as germline gene editing, expected to impact central human capabilities. (shrink)

Advancements in novel neurotechnologies, such as brain computer interfaces and neuromodulatory devices such as deep brain stimulators, will have profound implications for society and human rights. While these technologies are improving the diagnosis and treatment of mental and neurological diseases, they can also alter individual agency and estrange those using neurotechnologies from their sense of self, challenging basic notions of what it means to be human. As an international coalition of interdisciplinary scholars and practitioners, we examine these challenges and make (...) recommendations to mitigate negative consequences that could arise from the unregulated development or application of novel neurotechnologies. We explore potential ethical challenges in four key areas: identity and agency, privacy, bias, and enhancement. To address them, we propose democratic and inclusive summits to establish globally-coordinated ethical and societal guidelines for neurotechnology development and application, new measures, including “Neurorights,” for data privacy, security, and consent to empower neurotechnology users’ control over their data, new methods of identifying and preventing bias, and the adoption of public guidelines for safe and equitable distribution of neurotechnological devices. (shrink)

The increasing diffusion of novel digital and online sociotechnical systems for arational behavioral influence based on Artificial Intelligence (AI), such as social media, microtargeting advertising, and personalized search algorithms, has brought about new ways of engaging with users, collecting their data and potentially influencing their behavior. However, these technologies and techniques have also raised concerns about the potential for manipulation, as they offer unprecedented capabilities for targeting and influencing individuals on a large scale and in a more subtle, automated and (...) pervasive manner than ever before. This paper, provides a narrative review of the existing literature on manipulation, with a particular focus on the role of AI and associated digital technologies. Furthermore, it outlines an account of manipulation based of four key requirements: intentionality, asymmetry of outcome, non-transparency and violation of autonomy. I argue that while manipulation is not a new phenomenon, the pervasiveness, automaticity, and opacity of certain digital technologies may raise a new type of manipulation, called “digital manipulation”. I call “digital manipulation” any influence exerted through the use of digital technology that is intentionally designed to bypass reason and to produce an asymmetry of outcome between the data processor (or a third party that benefits thereof) and the data subject. Drawing on insights from psychology, sociology, and computer science, I identify key factors that can make manipulation more or less effective, and highlight the potential risks and benefits of these technologies for individuals and society. I conclude that manipulation through AI and associated digital technologies is not qualitatively different from manipulation through human–human interaction in the physical world. However, some functional characteristics make it potentially more likely of evading the subject’s cognitive defenses. This could increase the probability and severity of manipulation. Furthermore, it could violate some fundamental principles of freedom or entitlement related to a person’s brain and mind domain, hence called neurorights. To this end, an account of digital manipulation as a violation of the neuroright to cognitive liberty is presented. (shrink)