Neurolaws and privacy rights are still in the development stages. Neurological advances have allowed scientists to connect electrodes to the brain for analytical procedures. These electrodes can be connected in a non-invasive manner so they can download brain data. Now, this brain data can be analyzed to help patients with brain disorders such as epilepsy, depression, Parkinson’s disease or Alzheimer’s disease. Moreover, a human’s brain data may be analyzed to determine the truth and existence of intent.
Neuroscientists have been able to use advanced non-invasive techniques to observe and analyze cerebral neurochemical changes in the human brain. They have access to several technologies including, PET, SPECT, MRI, fMRI, and EEG. In fact, functional MRI (fMRI) is able to measure the brain’s activities under resting and activated conditions. It can be used to identify, investigate and monitor brain tumors, congenital anatomical abnormalities, trauma, strokes, and chronic nervous system disorders (e.g., multiple sclerosis).
Therefore, there is the potential of abuse when it comes to this new technology and that’s why legal scholars are concerned about privacy rights. Accordingly, needless to say, the right of privacy should be protected according to the state or federal rules, including, but not limited to, the Health Insurance Portability and Accountability Act (“HIPAA”) which was passed to address medical privacy concerns. Scholars have argued that voluntary informed consent must be granted by the individual to use brain information. In other words, this type of confidential medical information cannot be used without the person’s knowledge and permission. The Bill of Rights has granted the right of privacy to citizens under certain terms and conditions. In fact, the Fourth Amendment protects privacy rights against unreasonable searches and seizures by the government. Also, every state has promulgated similar privacy laws which can be more strict than their counterpart federal laws. However, the question is whether our thoughts belong to us.
Neuroscientists are concerned with the development, structure, function, chemistry, pharmacology and pathology of the human nervous system. They have made cognizable advancements and have focused on new ideas such as brain fingerprinting. Brain fingerprinting is a technique that is supposed to determine the truth by detecting brain information. This type of technique has been introduced in court, and in some cases, experts were allowed to testify. Yet, we will have to wait and see how the courts in other jurisdictions will deal with brain imaging tests. For example, in New York, a Frye hearing takes place to decide whether novel scientific evidence can be admitted in court and whether the technique has gained general acceptance in the industry.
It is arguable that brain imaging devices could be categorized as lie detectors if they’re utilized as truth-detecting techniques. There are federal laws – e.g., the Employee Polygraph Protection Act – that make it illegal for private-sector employers to force employees to take a polygraph or other kind of lie detector test (e.g., deceptograph, voice stress analyzer, psychological stress evaluator).
Our neurotechnology lawyers have been prosecuting and defending legal actions in state and federal courts and are available to speak with clients. Our law firm assists clients in matters related to neurolaws, artificial intelligence, cybersecurity, and privacy. Please contact our law firm to speak with an neurotechnology attorney at your earliest convenience.