Rudraksh Pathak & Arya Mishra are the students of National Law University, Nagpur
- Introduction
We are the Populus Scrutatus, ‘the People of Search’[i], but who are also searched and databased. That’s why it has been rightly pointed out that we are living in an age of “data-gaze and information citizenship”.[ii] Our mental integrity can at any point be tampered with sophisticated algorithms and Artificial Intelligence (AI) based computer interfaces that can precisely keep a tab on our vivid forms of data, preferences and thinking patterns. This surveillance and exploitation by some AI powered software and its ubiquity in terms of its unobtrusive technological presence while collecting all kinds of sensitive data of masses every day, declares a war on the ‘privacy’ and ‘person’ of an individual. Therefore, this research uses an unconventional strategy to ponder upon the neural tapestry of neurorights by understanding the gravity and essence of these rights with a socio-technical association between the advanced AI world as manifested in ‘The Matrix’ (1999) and its relevance with the developing regime of neuro rights.
II. Mental Privacy At Stake
If we refer to Kant’s notion of locus internus in philosophy, we roughly get an idea of what all experiences of that person, her emotions, her own volitions, and her thoughts become active part of her privacy. And when this privacy becomes vulnerable to some sentient machines that have crafted a neural network in which she is imagining herself in an algorithm governed world, but is physically stored in some breeding pod that those machines have allocated for humans, it though in an exaggerated form, but highlights the reality of the world where mental privacy of an individual is in the hands of some ‘coding elites’.
For instance, the search engine that we use has an unobstructed access to our informational privacy. They control your recommendations; they decide your autonomy within the society, which in current digital age extends to the realm of information technology or ‘infosphere’ as emphasized by Luciano Floridi. This control over our information economy as well as the explicit collection, gathering of data, is nothing but ‘dataveillance’.
Today, the right to informational privacy stands as a fundamental pillar in consumer protection legislations globally, exemplified by statutes like the California Consumer Privacy Act (CCPA). Moreover, robust data protection and privacy regulations, such as the General Data Protection Regulation (GDPR) implemented by the European Union, underscore the paramount importance of safeguarding individuals’ personal information in an increasingly interconnected and data-driven world. These legal frameworks collectively champion the cause of preserving user autonomy, ensuring transparency in data processing, and fortifying individuals against unwarranted intrusions into their digital lives.
III. Championing The Cause Of Neurorights
A. Why neurorights?
In 2019, Rafael Yuste, a distinguished neuroscientist and the director of the Center for Neurotechnology at Columbia University (USA), spearheaded a groundbreaking experiment as part of the BRAIN project. In this study, Yuste and his team utilized implanted electrodes in the brains of rats to manipulate neural activity, effectively inducing the perception of non-existent stimuli. This experiment marked a significant stride in neuroscience, highlighting the capability to control cognitive processes through direct intervention in brain activity. This similar phenomenon can be observed in ‘The Matrix’, where the programming of the software was such that Neo, Trinity and Morpheus who in actuality were some random hackers or coders, but through programming of neural networks, they could be easily transferred to a different reality where they could fight like skilled assassins. This perception of non-existent stimuli if with strides in technology, be created in the minds of an ‘ordinary person’, then it would be the biggest doom of mankind, which cannot be outrightly ignored, seeing the growth in ‘digital capitalism’ and ‘coding elites’.
The interesting part is how this relatively new coinage of ‘Neuro Rights’ expects a kind of Hippocratic oath from tech giants such as Facebook, Google, YouTube, etc. The way a doctor takes this oath to protect its patient against all kinds of ethical blunders on her part, similarly companies, tech corporations are expected to aim for an ethical management of their users’ data.
Generally these five neuro-rights have been recognized on priority basis by NeuroRights Initiative platform-
Figure 1: Source- NeuroRights Initiative
- Neurorights of certain social fits
This narrativization of personal information of certain ‘social fits’ is what specially needs to be protected. There are claims by different scholars such as Michael Kosinski who deliberate upon the potential of such algorithms. The researchers developed and assessed a “sexual orientation detector” by utilizing a dataset comprising 35,326 images sourced from public profiles on a prominent US dating website. The composite images derived from individuals identifying as lesbian, gay, and straight illuminate notable distinctions within facial features, providing crucial insights into the algorithm’s information-processing capabilities. Wang and Kosinski contend that these disparities in physiognomy, or facial structure, form the crux of the algorithm’s discernment of sexual orientation.
Figure 2: Source- https://medium.com/@blaisea/do-algorithms-reveal-sexual-orientation-or-just-expose-our-stereotypes-d998fafdf477
While these initial findings may seem superficial, it is imperative to recognize the potential risks associated with the trajectory of strong AI evolution. As these algorithms advance and refine their assessments, there exists a substantial concern regarding the inadvertent exposure of an individual’s sexual orientation without their explicit consent. Such a scenario represents a profound infringement upon an individual’s mental privacy.
This heightened precision in algorithmic functioning could pose a significant threat, particularly in the context of active targeting. Adolescent girls and individuals within the LGBTQ+ community may be disproportionately vulnerable to privacy violations and unwarranted exposure.
- Chile’s Neuro-Rights; a Pilot Project
In a landscape transformed by unprecedented strides in neuroscience and technology, this groundbreaking legislation emerges as a bulwark against unwarranted intrusions into the sanctity of “mental identity”. The legislation boldly affirms mental identity as an unalienable right, asserting a stance that challenges the current trajectory of scientific progress.
The stepping stone amongst the bills introduced by Chile was the constitutional reform, i.e., the amendment of Article 19.1 of the political constitution of Chile, which now states-
It steadfastly prohibits any scientific endeavour that seeks to alter, reduce, or disturb brain activity without explicit individual consent. The legislation meticulously delineates five cardinal rights designed to fortify the cognitive sovereignty of individuals. These rights include the sacrosanct principles of mental privacy, the preservation of personal identity, the unimpeded exercise of free will, equitable access to transformative technological breakthroughs, and immunity from insidious algorithmic discrimination. The bill goes beyond rhetoric, imposing stringent prohibitions on coercive practices related to neurological data. Both the compelled surrender and the commercial trade of such data are expressly forbidden. Notably, the legislation sanctions only “altruistic” donations of neural data, emphasizing the ethical imperative of respecting individual autonomy.
This cognitive integrity and sovereignty of an individual is constantly exploited during clinical trials. Therefore, to maintain an informed consent of an individual, it is imperative that the brain activity of an individual is safeguarded.
IV. Efficient Utilisation Of Indian Framework
- Article 21 of Constitution of India
Legislation on neuro-rights calls for well-defined limits and normative regulations to safeguard and uphold the integrity of the human brain and mind. Although there is no explicit legal framework in India pertaining to this matter, substantial legal support can be derived from the verdict on the right to privacy in the case of K.S. Puttaswamy v. Union of India.
If we delve into the issue of informational privacy being jeopardized at the whims and fancies of the tech giants, then it raises a major issue of right to self-determination further reaching towards the collar of Article 21 of the Constitution of India. This concept of self-determination is premised on the free will which is not only governed by Article 21 but, also a cardinal right recognized under the major 5 rights as envisaged above in Figure 1. In ‘The Matrix’, Neo fought all along for his free will, by choosing the red pill, and accepted the world of reality instead of some programmed world.
- Digital Personal Data Protection Act, 2023 (DPDP)
Section 6 of DPDP Act, in accordance with GDPR proposes a nature of consent i.e., free, informed and unambiguous. Similarly, this consent can be further interpreted in terms of neural consent where right to not be governed by any algorithm, is given adequate space and essence.
Further under Section 12 it is equally important to understand right to erasure of personal data should also extend to the consumer choices where their brain patterns, sexual orientations, choices, political ideologies are not subjected to utter manipulation by generating a streak of such recommendation. The erasure of data should extend to this extent, with an appropriate informed and free consent of the customer for that specific interface.
- Conclusion
The issues of mental privacy and mental integrity are constantly at stake with a surge in AI built algorithms that have a complete access to one’s preferences, choices, sexual orientations and political ideologies. This tracking of one’s brain pattern can be catastrophic for certain social fits against whom this narrativization of personal information can be aimed such as LGTBQ+ community. This control of informational economy is also against the mental integrity of the data subjects. Chile’s Neurorights Bill acts as a stepping stone in this process of developing a range of rights. Further, the research also highlights how much the Indian legal framework is already well-equipped in dealing with this crisis.
[i] Ken Hillis, Michael Petit and Kylie Jarrett, Google and the Culture of Search (1st edn, Routledge 2012).
[ii] Pramod K. Nayar, Citizenship and Identity in the Age of Surveillance (Cambridge University Press 2015).