Dr. jur. Albana Hana
‘It is as if I have performed a strategic retreat into an inner citadel – my reason, my soul, my ‘noumenal’ self – which, do what they may, neither external blind force, nor human malice, can touch.’
(Isaiah Berlin, ‘Two concepts of liberty”)
Conceptions
‘Mental privacy has emerged in recent years as a critical concern regarding emerging neuro-technologies’, implying the idea of a right to ‘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’ (Paz; 1).
Privacy has been ‘on the market’ for quite some time now since Warren and Brandeis (1890) published a seminal work in the Harvard Law Review, retaining that privacy is the right ‘to be left alone’. Later on, Alan Westin (1968) would elaborate on this definition to conclude that privacy is ‘the claim of individuals, groups or institutions to decide by themselves when, how and to what extent personal information is communicated to others’.
The mental definition refers to the so-called neural data, data concerning the physiological and chemical processes and the areas activated in our brain following sensory and interpretative experiences, as well as mental data, data concerning mental states as by-products of the neural processes, such as thoughts, emotions and intentions. Therefore, mental privacy can be defined as the ‘right to decide by ourselves when, how and to what extent our neural data and thoughts, emotions and intentions can be communicated to others’.
The right to mental privacy is the converging proposal of a group of ‘ethical, legal and social or natural principles of freedom or entitlement relating to a person’s cerebral or mental domain’ (Ienca, 2021), proposed and advocated by different groups and has come to be known as neuro-rights. Same as in the discussion about the differences between the right to privacy and the right to a private and family life, home and correspondence (the latter implying ‘a sphere within which every individual can freely develop and fulfill his personality, both in relation to others and with the outside world’) (CoE Handbook; 12), the debate around the adoption or not of neuro-rights as a separated set of human rights in general and the right to mental privacy in specific, is marked by the issue of separateness between the self from the environment.
Hence, the main point for discussion is: should we have a separate right to mental privacy, as part of a category of rights proposed to protect and preserve our inner realm from neurotechnology (‘the broad and heterogeneous spectrum of methods, systems and instruments that establish a direct connection pathway to the human brain and through which neural activity can be recorded and/or influenced’) (Ienca, 2021), or should it be treated as an inherent part of the already existing legal norms on privacy (ICCPR – Art. 17; EUCHFR – Art. 7) and personal data (GDPR, which already treats genetic, biometric and data concerning health as sensitive data – Art. 4)? Just as the life happening within the walls of our home or whenever we decide to be, can we speak of a separate and independent life of our brain?
It is obvious that our brain-mind sphere already has a life of its own, with a proper capacity to keep privacy or have a life that others cannot know. Nature herself has provided for it – no one can read our thoughts or emotions, as the human body is a separate system. (Not quite entirely, since the development of non-verbal communication is not unfamiliar to the ‘symptoms’ of inner thoughts or feelings manifested in our observable behavior). The main proponents of the adoption of the right to mental privacy maintain that this right should protect the brain-mind sphere per se, including brainwaves as a source of information, the products of the unconscious processes, as well as the discriminatory leakage of brain data; i.e. the structure, the processes and the products.
Protecting our mental privacy is vital because the mental world we speak about constitutes the most sacred or the last shield of our humanness and of the freedom in the purest form. Interfering with and violating the secrecy of our most intimate part means interfering with the core of our existence and, consequently, affecting mental freedom and cognitive liberty, which are the basis for guaranteeing free agency or the ability to anticipate action and consequences, and to feel in control of our lives and to eventually effectively undertake action. It is especially important as far as access to justice and democracy are concerned.
Mental privacy is very important due to the fragile and vulnerable nature of the human being per se and as a member of a given community. We need each other as much as we need to maintain a certain distance from. Maintaining the privacy of our thoughts, feelings, and intentions is indispensable for social acceptance and belonging, as well as for preserving social relations and social cohesion (Giddens, 313). Furthermore, the protection of personal data is considered a form of respect for intimacy (Nowak; 297), in a world where, in John Stuart Mills’ words, ‘opinions are a tyrant enslaving the soul itself’ (Nowak; 289).
Secrecy and confidentiality of our inner products are crucial for the maintenance of our self-image, social image and reputation. Protecting the privacy of our mind means protecting the nucleus, the self with all four elements of the self-concept: self-knowledge, self-esteem, self-control and impression management (a crucial element for avoiding unease and discomfort caused by cognitive dissonance) (Aronson et al.; 2014); and identity, as childhood and youth is marked by the crisis Eriksen calls ‘identity vs. role confusion’ (Eriksen; 261-263).
Yet, the mind is no separate entity. Nothing ever is an island. Everything is related to and a continuation of some part or the other, despite the tendency to severe for the sake of studying and understanding parts and processes. As the Italian writer Italo Calvino in his ‘Six Memos for the Next Millennium’ (2016) rightly highlights, light is the basis on which every heavy or tangible object sits. Therefore, at this point in time, I maintain that mental privacy should be seen as an intrinsic part and the precursor or the generator of all kinds of privacy material. Furthermore, being a strong advocate of the principle of legal certainty, I strongly agree with the opponents of the adoption of a separate set of rights for the brain-mind sphere as inflating the existing sets of rights and support the introduction of justificatory tests to shed more light on the indispensability of adopting the neuro-rights.
State of the art
UNICEF’s 2024 report on the state of the children in the world listed ‘frontier technologies’ as one of the three global megatrends that will shape society until 2050. There is no point of discussion that generations are indivisible, just as human rights are indivisible, and the latest Maastricht Principles on the Human Rights to Future Generations of 2023 recognize the intergenerational responsibility to protect and preserve human rights. The American author Alice Walker once said that the present we are constructing should look like the future we are dreaming of. Whether our present, as far as our mental life is concerned, looks like a future we wish to have for future generations and for the future of ourselves, is questionable.
With the advent of Web 2.0 and alongside the numerous positive aspects of the advancements in (neuro) technologies and AI used for curative purposes, the possibility to have access to our mental or neural data and to the outcome of our brain and mental activity, as the only way to understand (read the patterns of) our brain and mind and to transcribe them in view of intervening for curative of neurological and psychiatric diseases’ purposes, has augmented, brining new concerns stemming from the misuse of and abuse with this data.
In 1971, Dean Prosses introduced a taxonomy of 4 types of torts related to the right to privacy, with intrusion upon one’s physical solitude or seclusion and public disclosure of private facts, as the most well-known forms of torts in the present. Even ‘brain washing” or other manipulation of the subconscious without the awareness of the person concerned, constitutes interference with the person’s privacy’ (Nowak; 295) and this is no news to our ears as surveillance is becoming the norm under the justification of public interests and health, national security and law enforcement, and the digital tech inventions and business community are the frontrunners persuading all of us through subliminal messages and ads that call out our emotions. The need for data harvesting is becoming more and more indispensable for the maintenance of programs, while more data does not necessarily translate into better protection and increased security.
A 2024 report of the UN Human Rights Council Advisory Committee, “Impact, opportunities and challenges of neuro-technology with regard to the promotion and protection of all human rights”, evidences the (potential) risks and threats of the new advancements in neuro-technology. The report acknowledges the right to privacy as a right particularly at risk and children as a group in the most vulnerable situations, due to their brain plasticity, risk of modulating the thoughts and inability to discern risky situations, especially in using neuro-games and being consumers for the neuro-marketing. The use of the so-called non-invasive neurotechnologies, ‘chip technology’ or, cosmetically invisible implants that allow users to control computers and mobile devices from any location, for consumer purposes in view of mental enhancement or augmentation and introduced in other fields such as education and work for cognitive and performance enhancement (HRCAC: 2024), or the judiciary for law enforcement purposes (Ienca; 2021), bring promises that seem somehow frightening as you read that ‘these advances bring significant promise of improvements to mental and physical functioning, with growing ability to both restore neurological deficiencies and enhance cognitive capacities (memory, attention, sensation, problem-solving), beyond innate human limits’.
Already, a 2021 report of the UN Committee on the Rights of the Child identified the concerns related to the right to privacy of children from the use of technology, such as the collection and processing of children’s data by public institutions, businesses and other organizations, from criminal activities. The Report touches upon the ways privacy violation affects children, as particularly vulnerable to the negative effects of neuro-technologies and also due to errors enacted by children and parents too.
Proposals
As anticipated, the present does not look like a very optimistic future! We were already warned about this by John Stuart Mill, where in his essay ‘On Liberty’ he recognized that ‘the nature and limits of the power which can be legitimately exercised by society over the individual would make itself recognized as the vital question of the future’. The imminent risks and real consequences of the use of neurotechnology for consumer purposes have not yet been fully studied and understood. Further and concerted academic and empirical research by multi-disciplinary teams is indispensable, particularly on ‘the effectiveness of most of the commercialized products, which is not backed by scientific evidence/knowledge, as well as on the potential side effects and long-term impacts (HRCAC: 2024). Debates around the highly disruptive technology operating in a highly deregulated environment (HRCAC: 2024), and which requires anticipation that goes hand in hand with the promises of the neuro-technologies, should balance the so-called neuro-enchantment (EPRS; 2024), and inform public awareness with unbiased findings. Countries like Chile have elevated their efforts to regulate neuro-technology by enhancing their status to the constitutional level.
Furthermore, the debate over neurorights is crucial because both our cognitive and affective sides are receiving greater attention. I am positive that the introduction of the debate on neuro-rights is boosting the reconsideration of the status and importance of the psychological dimension in torts, something the law and the courts have kept at a distance, given the difficulty in objectively proving the psychological harm of a cognizable tort, which can also constitute a cause of action. (Perhaps the new neuro-technologies will assist in proving the veracity of psychological trauma caused by events.)
In the meantime, interference with a child’s privacy should only be permissible if it is neither arbitrary nor unlawful. Any such interference should therefore be provided for by law, intended to serve a legitimate purpose, uphold the principle of data minimization, be proportionate and designed to observe the best interests of the child and must not conflict with the provisions, aims or objectives of the Convention (CRC Report: 12)
This moment should also serve for revisiting the right to freedom of thought, which is best introduced in the title of a 2024 special report, ‘Freedom of thought: Reviving and protecting a forgotten Human Right,’ as a forgotten right. The right to freedom of thought is an underdeveloped subfield in the realm of fundamental human rights, either at the theoretical or at the practical (jurisprudence) level. It is merely understood as freedom to hold religious beliefs, while it is much more, and as we speak, it is highly challenged by the new advancements in neuro-technology. This right includes the ability to form opinions and beliefs free from coercion or invasive surveillance.
In the meantime, what urges for more immediate action is: changing values by doing, counterbalancing the technology!
The road to the final verdict concerning the proposed neuro-rights is relatively long. In the meanwhile, the famous principle of the best interest of the child should lead all deeds and serve as a check principle in data governance and privacy protection, while we should endeavor to use and revive other social mechanisms developed over the centuries and somehow belonging to the old school of education and learning.
Children use technology for the same reasons we all use technology: facility, conformity, acceptance, etc. By introducing us to such options and practices that lead to us changing our behavior and therefore our mental programs and finally our values by creating new behavior patterns (Hofstede; 12-13), the tech community has had the best on us: in the beginning, as very useful options to slowly becoming the only options. And as Cialdini points out in his work on influence and persuasion, the ever-accelerating pace and informational crush of modern life will make unthinking compliance and automatic influence more and more prevalent in the future (Cialdini; vii). Children should return to using five fingers, as opposed to the new (neuro) technologies’ imposition of the scrolling finger.
Handwriting is very important for cognitive processes such as memory, understanding of complex ideas and creativity. Hands, which Kant defined as the ‘man’s outer brain’, are the first to ensure building trust in and feeling secure with others as we grow up, while touch is the first stage of socialization with the world. The technology and the entire artefacts would not exist, and therefore civilization would not exist without the human hand, which is the mediator between the human and the technology. As Marshall McLuhan used to say, ‘We shape our tools, then our tools shape us’. The hand and the brain are two symbols of human nature as a transcendental and terrestrial being, all at once. It is therefore very important to keep them wired to each other. This is where the doing should start. Children should relearn the importance of relying on their own thinking. The chatbots and all devices are becoming the authority, soon unquestionable and the only authority.
Playing is another crucial form of socializing that should be encouraged. Direct contact is the way we understand each other in a mirroring process, and how we come to learn about ourselves and about the world we live in and how we construct the self and our identity. Handwriting and playing require mindfulness and activate our controlled thinking (system 2 – the active), in contrast to automatic thinking (system 1 – the lazy guy and the feature par excellence of the technology), an operation modus ingeniously introduced by the Nobel Prize in Economics, Daniel Kahnemann in his work ‘Thinking fast and slow’. And as St. Augustine in his Confessions advised, Inde quippe animus pascitur, unde laetatur, ‘For upon that is the mind fed, of which it is glad’ or, nourishes the mind what rejoices it.
Education, in formal and informal settings, which remains a state’s responsibility, about the risks of using technology and neuro-technology is crucial. These should include parents too, which should be more on the educational side and less part of the problems.
I want to conclude this blog by citing one of my favourite poets, Mary Oliver, on the importance of attention as the highest form of love directed to children (and everyone, for that matter), which makes learning and pro-social behavior easier and more effective.
“Teach the children.
We don’t matter so much, but the children do.
Show them daisies and the pale hepatica.
Teach them the taste of sassafras and wintergreen.
The lives of the blue sailors, mallow, sunbursts, the moccasin flowers.
And the frisky ones – inkberry, lamb’s-quarters, blueberries.
And the aromatic ones – rosemary, oregano.
Give them peppermint to put in their pockets as they go to school.
Give them the fields and the woods and the possibility of the world salvaged from the lords of profit.
Stand them in the stream, head them upstream, rejoice as they learn to love this space they live in, its sticks and leaves and then the silent, beautiful blossoms.
Attention is the beginning of devotion.”
(Mary Oliver, Upstream: Selected Essays).
Bibliography
Alegre, Susie., and Aaron Shull. Special report ‘Freedom of Thought: Reviving and Protecting a Forgotten Human Right’. Centre for International Governance Innovation (CIGI), 2024.
Aronson, Elliot et al. Social Psychology. Pearson Education Limited, 2014.
Berlin, Isaiah. Four essays on liberty. Oxford University Press, 1990.
Cialdini, Robert B. Influence. The psychology of persuasion. Harper Collins, 2007.
Eriksen, Erik H. Childhood and Society. W. W. Norton and Company, Inc., 1963.
European Parliamentary Research Service. Study on “The protection of mental privacy in the area of neuroscience: Societal, legal and ethical challenges”, 2024. doi: 10.2861/869928
European Union Agency for Fundamental Rights. Fundamental rights report 2025.
European Union Regulation (EU) 2016/679 ‘on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC’ (General Data Protection Regulation). 2016.
Giddens, Anthony., and Philip W. Sutton. Sociology. Polity Press, 2013.
Hofstede, Geert. Culture consequences: Comparing values, behaviors, institutions, and organizations across nations. Sage Publications, 2001.
Ienca, Marcello. “On neurorights”. Frontiers in Human Neuroscience 15:701258 (2021). https://doi.org/10.3389/fnhum/2021/701258.
Kahnemann, Daniel. Thinking fast and slow. Penguin Books, 2012.
Maastricht Principles on the Human Rights of Future Generations, 2023.
Mill, John S. On liberty. 1859.
Nowak, Manfred. UN Covenant on Civil and Political Rights. CCPR Commentary. N.P. Engel, Publisher, 1993.
Roagna, Ivana. Protecting the right to respect for private and family life under the European Convention on Human Rights. Council of Europe Human Rights Handbook, 2012.
UNICEF. 2024 Report. The future of childhood in a changing world.
United Nations General Assembly. Report of the Human Rights Council Advisory Committee Impact, opportunities and challenges of neurotechnology with regard to the promotion and protection of all human rights. 2024.
United Nations General Assembly. General comment No. 25 of the Committee on the Rights of the Child “Children’s rights in relation to the digital environment”. 2021.
Wajnerman Paz, Abel. “Is Mental Privacy a Component of Personal Identity?” Frontiers in Human Neuroscience 15:773441 (2021). https://doi.org/10.3389/fnhum/2021/773441.
Warren, Samuel D., and Louis D. Brandeis. The right to privacy. Harvard Law Review, 1890.