What happens when technology learns to read our minds?

“An important question is how appropriate Australian law is to address the challenges of technologies that monitor and/or influence the brain.”

Protecting our brains

“Australia needs to consider what kind of response is needed here, given that governments in other countries have already taken action to address similar issues,” Dr McKay said.

“In August of this year, Chile’s Supreme Court issued a historic decision regarding neurotechnology and human rights that addresses the issue of brain data protection, based on their recently improved constitution.”

In 2021, Chile brought about the world’s first constitutional change inspired by neurotechnology, and this modification inserted the following words into section 19 of the constitution:

Scientific and technological development will be at the service of people and will be carried out with respect for life and physical and mental integrity. The law will regulate the requirements, conditions and restrictions for its use in humans, and must protect mainly the brain activity, as well as the information coming from it.

The change was a milestone in protecting neurodata (data obtained from the brain or nervous system) and set a precedent, with other countries now also seeking constitutional changes.

The Supreme Court decision was in relation to a product (marketed as Insight), which monitors users’ brain waves. The device can be used to monitor cognitive performance, including levels of attention or stress, or be used to control devices.

Based on the 2021 constitutional change, the court ordered Emotiv, the company (which started in Australia) that manufactures the product, to remove the applicant’s brain data from their portals and “The Cloud”.

The applicant, Guido Girardi, a former Chilean senator, was a driving force behind the 2021 constitutional change and strongly advocates the “neuro-right”.

Human rights and neurotech

Dr McKay says the Australian Human Rights Commission is now actively considering what Australia and the international community could do. Both the Human Rights Commissioner and the Chair of the Human Rights Commission have spoken at Australian events focusing on neurotechnology, and the Commission recently made a statement to the UN on neurotechnology and human rights.

“But it appears that looking at Australia’s response to neurotechnology needs to be broadened,” Dr McKay said.

“These devices may not just retrieve information, but act on our brains and nervous systems to influence them.

“Neurotechnology will challenge different areas of law. This will require Australia’s law reform commissions to consider emerging challenges and also means that various regulators such as the Office of the Australian Information Commissioner must consider the implications of the technology.

“However, in addressing the legal issues, we must avoid a regulatory environment that stops the development of useful therapeutic neurotechnology – that technology should be supported, not hindered.”

“These issues will require political leadership. While in Australia artificial intelligence is currently, at least to some extent, on the political agenda, more specific human-related issues are developing a much closer relationship or even merging with technology are completely absent from Australian political discourse.

“That must now change. It is critical that we pay full attention to the laws that protect the privacy and integrity of our brains and consider the many other ways that neurotechnology will affect the law.

He adds that the Chilean developments are particularly important for Australia, as there has recently been increased commercial interest in neurotechnology.

“The level of investment alone suggests the time is right for Australia to further consider a neurotechnology response,” Dr McKay said.

Dr McKay analyzes the significance of the case in more detail in this article in the Law Society of NSW.

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