by: Richard M. Marsh, Jr., Associate Editor, MTTLR
Specifically, neuro-scientific advancements now allow access to an individual’s mind. One example is fMRI technology which, now or very soon, will be capable of invading one’s mind and seeing thoughts as they happen. 1 Various news agencies report that scientists can currently “see” when a subject recognizes 2 or thinks about a photo, 3 is sexually aroused, 4 or lies. 5 Other reports indicate that refinements are not too far away which will enable users to perceive individual thoughts. 6 Another example is propranolol, a drug which can effectively dampen or erase prior memories. 7 A third example involves brain to computer interfaces which have the ability to monitor and change brain wave patterns. 8 While these developments can produce significant advantages for individuals and society, potential misuses could quickly unravel into serious violations of individual rights.
Mind invasive technology opens the door to practices which could violate many of the rights enshrined in the Bill of Rights. For example, it is easy to imagine a scenario where fMRI technology could be used to violate a civilian’s right to privacy, initiate an unreasonable search in violation of the Fourth Amendment, or even run afoul of the self-incriminating clause of the Fifth Amendment.
Furthermore, the need for protection from mental invasion is not only based on the constitution. For example, if used in interrogation techniques, fMRI technology could violate rights protected under international standards, including the International Human Rights Law. 9
Current legal protection may or may not ensure against these violations. For example, in Kyllo v. United States, 10 the Supreme Court ruled that using sense-enhancing technology (an infrared camera) without a search warrant to “see” inside a home violated the Fourth Amendment. 11 Justice Scalia applied the Katz test and stated “obtaining by sense-enhancing technology any information . . . that could not otherwise have been obtained without physical intrusion into a constitutionally protected area . . . constitutes a search – at least where (as here) the technology in question is not in general public use.” 12 The last phrase included by Justice Scalia could be interpreted to imply that the more popular a technology becomes, the less likely that courts will interpret the use of it by police as a search. Taken to the extreme, if the technology becomes common place, an fMRI search by police may become a “reasonable search” for purposes of the Fourth Amendment. However, the nature of fMRI technology is so invasive of an individual’s thoughts that the use of mind-reading technology should never be considered “reasonable.”
These illustrations only scratch the surface of the many dilemmas awaiting us as science continue to march forward. Nevertheless, the severity of the potential harms should advise us to be cautious and safeguard our fundamental rights as we implement each new innovation.
1 FMRI technology can also be used to change individual behavior. Jason Ponton, Mind Over Matter, With a Machine’s Help, N.Y. Times, Aug. 26, 2007.
2 CNN.com, See it, imagine it — it’s the same to your brain, Nov. 2, 2000.
3 Faye Flam, Your Brain may Soon Be Used Against You, Phila. Inquirer, Oct. 29, 2002.
4 ScienceDaily.com, Pedophiles Have Deficits In Brain Activation, Study Suggests, Sep. 24, 2007.
5 BBC News, Can brain scans detect criminals?, Sept. 21, 2005.
6 BBC News, Brain scan ‘can read your mind’, Feb. 9, 2007.
7 Adam J. Kolber, Therapeutic Forgetting: The Legal and Ethical Implicaions of Memory Dampening, 59 Vand. L. Rev. 1561, 1574-78 (2006).
8 Emmet Cole, Direct Brain-to-Game Interface Worries Scientists, Wired, Sept. 5, 2007.
9 See Sean Kevin Thompson, Note, The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation, 90 Cornell L. Rev. 1601 (2005).
10 Kyllo v. United States, 533 U.S. 27 (2001).
11 Id. at 40.
12 Id. at 34.