Brain Data in Context: Are New Rights the Way to Mental and Brain Privacy?

Abstract

The potential to collect brain data more directly, with higher resolution, and in greater amounts has heightened worries about mental and brain privacy. In order to manage the risks to individuals posed by these privacy challenges, some have suggested codifying new privacy rights, including a right to “mental privacy.” In this paper, we consider these arguments and conclude that while neurotechnologies do raise significant privacy concerns, such concerns are—at least for now—no different from those raised by other well-understood data collection technologies, such as gene sequencing tools and online surveillance. To better understand the privacy stakes of brain data, we suggest the use of a conceptual framework from information ethics, Helen Nissenbaum’s “contextual integrity” theory. To illustrate the importance of context, we examine neurotechnologies and the information flows they produce in three familiar contexts—healthcare and medical research, criminal justice, and consumer marketing. We argue that by emphasizing what is distinct about brain privacy issues, rather than what they share with other data privacy concerns, risks weakening broader efforts to enact more robust privacy law and policy.

Keywords:

• privacy
• mental privacy
• contextual integrity
• brain data
• neural data
• neurotechnology

This article is referred to by:

Brain Exceptionalism? Learning From the Past With an Eye Toward the Future

Beyond Substance: Structural and Political Questions for Neurotechnologies and Human Rights

Nissenbaum and Neurorights: The Jury is Still Out

Moving Beyond Context: Reassessing Privacy Rights in the Neurotechnology Era

Brain Data Availability Presents Unique Privacy Challenges

Between Collection and Interpretation: Targeted Rights for Unpredictable Insights

Privacy Protections in and across Contexts: Why We Need More Than Contextual Integrity

Integrating Mental Privacy within Data Protection Laws: Addressing the Complexities of Neurotechnology and the Interdependence of Human Rights

ACKNOWLEDGEMENTS

We thank participants in the Penn State Bioethics Colloquium, the Law & Technology Workshop at the Tel Aviv University Buchmann Faculty of Law, and the 4th Annual Symposium on Applications of Contextual Integrity at Cornell Tech for their engagement with the arguments and ideas presented in earlier versions of the paper.

Notes

1 In what follows, we adopt the IEEE WG P2794 definition of “neural data” as “all biosignals of neurological origin, including those recorded directly from neural tissues, and downstream biosignals (e.g. EMG).” It is important to point out that the discussion of privacy concerns resulting from neurotechnology often time uses interchangeably the term brain data (data directly obtained from the brain) and neural data. Also of note, a few years ago discussions of privacy were mostly elicited when discussing brain imaging technologies, nowadays the focus has been mostly on discussions around brain computer interfaces and brain implants.

2 Others view this as a kind of “neuro exceptionalism” (Bublitz 2022; Tovino 2007)—the idea that brain data has a special nature relative to other personal information.

3 If we consider the implications of the extended mind thesis, namely that the mind is not only tied to the brain (Clark and Chalmers 1998; Lippert-Rasmussen 2017), then indeed looking at our browser history in our phone might be more revealing of our minds than certain brain data.

4 For a more detailed discussion please see Ienca 2021b.

5 https://nri.ntc.columbia.edu/projects

6 NeuroRights Initiative, 2021

7 We thank one of our reviewers for his/her suggestions on how to best characterize the different approaches on the current debate around neurorights.

8 For a similar criticism see Bublitz. http://doi.org/10.1007/s12152-022-09481-3.

9 For a brief overview, see (Susser 2016). For a longer, critical discussion about the relationship between contextual integrity and control theories of privacy, see (Birnhack 2012).

10 Some argue that the term “neuromarketing” encompasses a more expansive set of techniques than this, including, amongst other things, the measurement of “physiological aspects such as perspiration, electrical conductivity of the skin, hormonal and neurotransmitter changes, movement and dilation of the pupil, movements of muscles (body and face), to even the understanding of complex cognitive aspects, such as the functional activity of specific regions of the brain by means of the analysis of different markers such as electrical waves, cerebral metabolism and its blood flow” (Fortunato et al. 2014).

11 Kasper Lispert-Rasmussen offers further reasons for doubting that brain data raises unique privacy challenges, beyond those we put forward below. See (Lippert-Rasmussen 2017).

Additional information

Funding

The author(s) reported there is no funding associated with the work featured in this article.