Blog Entry
August 8, 2024
Do we have rights that protect us from the use of Neuro-technologies?
By Eduardo Bertoni*
The rise of new technologies raises new questions about our rights. These new possibilities have begun to leave the realm of science fiction and become reality. However, this does not mean that we are legally unprotected from any abuse that technologies may cause us. In other words, it is not necessary to "create" new rights, but to know and apply the ones we already have. The recent decision of the Chilean Supreme Court (Girardi v/s Emotiv), (sentencia Rol N°105.065-2023) regarding the 'Insight' device shows the importance of protecting our rights in this new context. We explore how international laws and judicial decisions help us understand and apply our existing rights.
Some time ago, I told colleagues that the personal reasons driving my attraction to the study of certain technologies and how they could impact our daily lives might be due to my fascination with a late 60s children's series we knew as "Joe 90". The series showcased a huge machine that allowed Joe, a child, to quickly assimilate the knowledge he needed to carry out various spy missions. If he needed to fly a jet, connected to electrodes on his head, in just a few minutes, he gained the knowledge transferred from a seasoned pilot. That series impacted me because I wanted that machine to learn everything quickly. This technological possibility is starting to become more than just a science fiction tale. However, it doesn't mean we are legally unprotected from any abuses that technologies may cause us. In other words, we don't need to "create" new rights but rather understand and apply the ones we already have.
A recent ruling by the Supreme Court of Chile (Girardi v/s Emotiv) shows that we are facing this reality. Guido Girardi Lavín, a former Chilean Senator, filed a constitutional action against the company Emotiv Inc., to protect fundamental rights due to the sale and marketing of the "Insight" device in Chile. The ruling states that 'Insight' is a wireless device that works like a headband with sensors collecting information on brain electrical activity, obtaining data on gestures, movements, preferences, reaction times, and cognitive activity of the user.
In addition to citing Chilean law, the decision granting Mr. Girardi's request is based on the affirmation that "there are various international instruments that recognize the relationship between science and Human Rights." Among these instruments, it mentions the International Covenant on Economic, Social and Cultural Rights, the Declaration on Science and the Use of Scientific Knowledge and the UNESCO Scientific Program, the Universal Declaration of Human Rights, the Universal Declaration on the Human Genome and Human Rights, and the Universal Declaration on Bioethics and Human Rights, also within the framework of UNESCO.
Sourcing and aware of these documents, it would seem misguided to assert that we need to create new rights as some sectors advocate under the name "neuro-rights," implying that the human rights catalog might need expansion because they are not protected. Furthermore, proclaiming that our human rights are not safeguarded against technologies that intervene in our lives as human beings might be the driving force behind a pattern of legislative reforms, as seen in Mexico, Chile, or Brazil, which are hardly necessary and could contribute to blurring and undermining the protection provided by current human rights standards.
It is possible to argue, instead, that human rights impacting technologies working on neuronal activity may be linked to, for example, the right to privacy of information produced by brain activity, which may be accessed through certain technologies. They also relate to the right to personal identity and self-determination, as technology can open the possibility to nullify or alter people's identities. Likewise, they are connected to the right to equality in the face of increased brain capacity, as some may access these technologies while others may not. Finally, and with the inherent risk of involving other human rights, they are also linked to the right to form and maintain one's own opinion. Regarding the latter, it is important to remember what Article 19.1 of the International Covenant on Civil and Political Rights, a legally binding human rights treaty for its signatories, establishes: “Everyone shall have the right to hold opinions without interference”.
Even in March 2023, the Inter-American Juridical Committee (IJC) approved a "Declaration of Inter-American Principles on Neuroscience, Neurotechnologies, and Human Rights." It is clear that for this body of the Organization of American States (OAS), there is protection for the use of "neuro data" when it unequivocally states in principle 3 that such data are "personal data". In other words, all regulations protecting and governing the treatment of personal data should also apply to what it calls neuronal data.
It is also necessary to caution that in these areas, progress must be made carefully: regulating invasive technologies is not the same as non-invasive ones. Another example to consider is that regulating technology that collects neuronal activity is not the same as technology that may alter it. Finally, regulatory perspectives differ when considering technologies that collect or modify neuronal activity in the central nervous system or the peripheral system.
To conclude, returning to the beginning with the story of my childhood experience: the machine Joe used in the series from fifty years ago is now part of reality. The timely ruling of the Chilean Supreme Court and the documents from the IJC allow us to conclude, as I mentioned at the outset, that there is no need to "create" new rights but rather to understand and apply those we already have. *Director of the Center for Human Rights and Humanitarian Law at the American University Washington College of Law. *Original in Spanish Reproduced with the author's permission and in accordance with the rules of the original source. The text is based on the editorial opinion of the author originally published as: “Tecnologías y derechos humanos” | El Universaldisponible en: https://www.eluniversal.com.mx/opinion/eduardo-bertoni/tecnologias-y-derechos-humanos/
Sourcing and aware of these documents, it would seem misguided to assert that we need to create new rights as some sectors advocate under the name "neuro-rights," implying that the human rights catalog might need expansion because they are not protected. Furthermore, proclaiming that our human rights are not safeguarded against technologies that intervene in our lives as human beings might be the driving force behind a pattern of legislative reforms, as seen in Mexico, Chile, or Brazil, which are hardly necessary and could contribute to blurring and undermining the protection provided by current human rights standards.
It is possible to argue, instead, that human rights impacting technologies working on neuronal activity may be linked to, for example, the right to privacy of information produced by brain activity, which may be accessed through certain technologies. They also relate to the right to personal identity and self-determination, as technology can open the possibility to nullify or alter people's identities. Likewise, they are connected to the right to equality in the face of increased brain capacity, as some may access these technologies while others may not. Finally, and with the inherent risk of involving other human rights, they are also linked to the right to form and maintain one's own opinion. Regarding the latter, it is important to remember what Article 19.1 of the International Covenant on Civil and Political Rights, a legally binding human rights treaty for its signatories, establishes: “Everyone shall have the right to hold opinions without interference”.
Even in March 2023, the Inter-American Juridical Committee (IJC) approved a "Declaration of Inter-American Principles on Neuroscience, Neurotechnologies, and Human Rights." It is clear that for this body of the Organization of American States (OAS), there is protection for the use of "neuro data" when it unequivocally states in principle 3 that such data are "personal data". In other words, all regulations protecting and governing the treatment of personal data should also apply to what it calls neuronal data.
It is also necessary to caution that in these areas, progress must be made carefully: regulating invasive technologies is not the same as non-invasive ones. Another example to consider is that regulating technology that collects neuronal activity is not the same as technology that may alter it. Finally, regulatory perspectives differ when considering technologies that collect or modify neuronal activity in the central nervous system or the peripheral system.
To conclude, returning to the beginning with the story of my childhood experience: the machine Joe used in the series from fifty years ago is now part of reality. The timely ruling of the Chilean Supreme Court and the documents from the IJC allow us to conclude, as I mentioned at the outset, that there is no need to "create" new rights but rather to understand and apply those we already have. *Director of the Center for Human Rights and Humanitarian Law at the American University Washington College of Law. *Original in Spanish Reproduced with the author's permission and in accordance with the rules of the original source. The text is based on the editorial opinion of the author originally published as: “Tecnologías y derechos humanos” | El Universaldisponible en: https://www.eluniversal.com.mx/opinion/eduardo-bertoni/tecnologias-y-derechos-humanos/
Eduardo Bertoni
Professor Eduardo Bertoni (PhD, Buenos Aires University) is currently the Director of the Center for Human Rights and Humanitarian Law at the American University Washington College of Law. Representative of the Regional Office for South America of the Inter American Institute of Human Rights until December 2023. First Director of the Access to Public Information Agency (AAIP) which is the Argentine Data Protection and Access to Information Authority. Founder and director of the Center for Studies on Freedom of Expression and Access to Information (CELE) at Palermo University School of Law, Argentina. Executive Director of the Due Process of Law Foundation (DPLF) until May 2006. Special Rapporteur for Freedom of Expression of the Inter-American Commission of Human Rights at the Organization of American States (2002-2005). Teaching Fellow at the Human Rights Institute at Columbia University School of Law (2001). Reagan-Fascell Democracy Fellow (2012-13) at the National Endowment for Democracy (NED). Former member of the advisory boards of the Human Rights Initiative (Open Society Foundations), the Media Legal Defense Initiative, the Freedom of Information Advocates Network (FOIAnet), among others. Dr. Bertoni has also worked as an advisor to the Department of Justice and Human Rights in Argentina. He is an Argentinean lawyer and holds a master's in international policy and Practice from the Elliot School of International Affairs, George Washington University. Prof. Bertoni taught at Buenos Aires University School of Law and New York University School of Law (Global Clinical Professor), among other universities. He published several opinion pieces on democracy and human rights in leading newspapers in the Americas and has written several publications on judicial reforms, international criminal law and human rights & the Internet.