Sinchana M.R. & R.S. Sanjanaa
I. Introduction
For centuries, the mind of a human has always been viewed as the ultimate domain of absolute protection from any external intrusion. In a masque written by John Milton in 1634, wherein a young girl is held captive by an enchanted chair, she proclaims, “Thou canst not touch the freedom of my mind.” John Bury recognizes this by saying, “A man can never be hindered from thinking whatever he chooses so long as he conceals.” This, in the modern age, is commonly called the right to cognitive liberty. This recognizes the right of each individual to think independently and autonomously, to use the full spectrum of his or her mind, and to engage in multiple modes of thought.
Despite the widespread adoption and advancements in neuro-technology, the Indian legal system has yet to explicitly incorporate this right. Unlike George Orwell’s assertion in 1984 that “nothing was your own except the few cubic centimeters inside your skull,” these technologies are designed to manipulate the human nervous system, which can either empower or even oppress the ability of self-determination. This article thus aims to argue that the legal system should incorporate this neuro-right at the earliest possible time to prevent misuse of transhumanistic technology. It begins by explaining the scope of application of transhumanistic technologies at present and proceeds to discuss the potential legal implications of such technologies within the Indian legal rights framework. It then debates the ambit for inclusion within the Indian legal system in terms of current legal insufficiency and foreign jurisdictions and their laws on transhumanistic technology. It concludes by providing recommendations for ensuring the right to cognitive liberty in India without affecting the growth of transhumanism.
II. Scope of transhumanistic technologies
Neuro-technology can range from acceptable brain imaging and monitoring tools such as magnetic resonance imaging and electroencephalograms that are used for medical diagnostics, to sophisticated devices such as brain-computer interfaces that can record and even modulate mental processes. This article restricts itself to the latter form of neuro-technology which has the potential to be exploited by corporations and governments around the world.
Neuro-technology is intended to be utilized through reasonable means for positive ends. For example, the recent partnership between L’Oreal and the neurotech giant Emotiv allows the customer to wear a multi-sensor EEG headset, and his mental responses are decoded to formulate the perfect scent for them that is suited to their emotions. Microsoft’s patented EEG device allows users to navigate web browsers and apps with their brains.
But the issue is that while the intention behind creating these technologies might be for beneficial use, there is no protection against their scope of exploitation. Corporates like Neuralink, Synchron, Meta, and Blackrock Nuerotech are currently working to construct implantable neurotech, such as the brain-computer interface or brain-machine interface, either inside the brain directly or by threading it to the blood vessel, which is beyond consumer control for the purposes of data assimilation and surveillance capitalism. Similarly, the State Grid Corporation of China orders tens of thousands of EEG sensor-fitted helmets to measure the workers’ fatigue and other brain wave activity in real time. Further, the Chinese military is reportedly investing in warfare techniques in relation to cognitive domain operations and evolving warfare from the physical to the realm of the human mind with the intention of controlling the opponent’s cognitive liberties and decision making.
III. Lack of right to cognitive liberty- Possible Effects on rights
The aforementioned lack of right to cognitive liberty poses a significant threat to existing human rights and accepted legal principles in the country, as portrayed below.
i. Freedom of Thought and Liberty
According to a specialist at the RAND Corporation, a public policy think-tank, there has been a notable increase in the Chinese emphasis on cognitive-control operations, which can shape or even control the enemy’s cognitive thinking and decision-making abilities. There are further attempts to develop ‘brainwave interferences’ and ‘infrasound weapons’ which are capable of interfering with brain tissues and thus affecting decision making and influencing thinking.
These directly interfere with the freedom of thought of the individual, a part and parcel of Article 19(1)(a), as they attempt to change the individual’s independent thought through their technologies.
ii. Unfair/arbitrary mandates
The CEO of SmartCap Technologies has invented head-gears that monitor fatigue levels on a scale from alert to involuntary sleep. It is mandatory for truck drivers in the Hunter Valley Operation in New South Wales to wear them. Further, EEG sensors were sold to the State Grid Corporation of China to monitor worker’s fatigue in real time. Another facet of this is emotional surveillance technology. Through this, when the system identifies abnormalities in the emotions of the worker, he can be asked to take a day off, or even be laid off.
Mandating consent in order to retain employment violates the principle of fairness since it deprives the employee of employment opportunities if the employee does not consent to use such invasive technologies.
iii. Right to Privacy
Mind-reading bike helmets seem to impose George Orwell’s “thought police.” The helmet by Veritas Scientific has been created to read brain waves through “event related potentials.” Through this, when a person’s brain associates a name with a face, there is a noticeable decrease in EEG activity. This decrease indicates that the individual recognizes the person. This same reaction can be observed when presented with a photograph of an object, a place, or even a name. In some cases, such as the issue with Multimer’s MindRider EEG bike helmet, as highlighted by Nita A. Farahany in her book “The Battle for Your Brain,” data collected through such helmets can be exploited. In this instance, data was collected beyond the initial mentioned extent and later utilized the accumulated personal data of the individuals to create maps of the cities with specific insights gathered from the users brains to determine an ideal retail establishment.
In the case of K.S. Puttaswamy v. Union of India, which guaranteed the right to privacy, it was held that informational privacy deals with a person’s mind and comprises anonymity, secrecy, and freedom. This is based on the assumption that all information about an individual is, in a fundamental sense, her own, and for her to communicate or retain to herself, as she deems fit. This was also stressed in the case of Jordan and Ors. v. State, wherein the court held that privacy rights start with the “inviolable inner self.” The White Paper on Data Protection in India, which highlights this aspect of informational privacy, further mentions that while data can be put to beneficial use, the unregulated use of data, especially personal data, raises concerns about the privacy and autonomy of the person. The aforementioned technology clearly violates such a right to privacy, as the thoughts of the individual while biking are being collected and used for purposes beyond those for which the biker intended them.
iv. Right against Self-incrimination
In 2008, for instance, a woman in India was convicted of murder and sentenced to life imprisonment based on experiential knowledge shown through a brain scan. Further, companies like No-Lie-MRI have developed technologies that ascertain the falsehood of a statement purely via brain recordings.
Such a breach of cognitive liberties amounts to testimonial compulsion under Article 20(3), especially if administered involuntarily. In the case of Selvi v. State of Karnataka, the Supreme Court held that narco-tests are cruel as the individual is not able to decide whether or not to answer the question. Following the case of State of Bombay v. Kathi Kalu Oghad and Ors., the Supreme Court in the former case further held that “the results of involuntary usage of neuroscientific techniques would amount to testimonial responses for the purpose of invoking the right under Article 20(3).” The court also placed reliance on Maneka Gandhi v. Union of India and held that even if an individual is not facing criminal charges, the involuntary administration of such tests would still infringe upon a person’s right to liberty as guaranteed under Article 21. As determined by the court, any evidence collected in this manner would only hold the same value as a statement given to the police, rather than being considered a confessional statement. However, even corroborative evidence collected through such invasive technologies, is still evidence that is used by the court, as seen in the aforementioned case.
v. Free Consent to Contract
While incidents to this effect have not occurred yet, the neurotech further provides a chance whereby the neuro and cognitive determination of the individuals can be tampered with, resulting in consent that is not of a free nature and is a mandate as per Section 14 of the Indian Contract Act, 1872. For example, transcranial magnetic stimulation can influence a person’s cognitive processes and lead them to make decisions that wouldn’t have otherwise been made.
IV. Ambit for inclusion
There is a need to determine the rights a human is entitled to in his mental arena. This need poses the requirement of reconceptualizing existing laws in India, as at present, there is no explicit recognition of the right to cognitive liberty. Thus, any redress for violation would have to fall under a writ petition pursuant to Articles 19 and/or 21.
IV A. Lack of explicit legal sufficiency
The Indian legal system has yet to provide a clear answer regarding the legitimacy of granting access to these technologies for interfering with another person’s brain. In this light, the Puttaswamy case had asked the Government to legislate on the subject of data protection to safeguard the informational privacy aspect of the right to privacy.
i. Indian Constitution
While freedom of thought is guaranteed under Article 19, as held in the case of S. Rangarajan v. P. Jagjivan Ram, it only states that the mind must be ready to receive new ideas, to critically analyze and examine them. This could potentially only cover issues where neuro-technology changes the way of thinking, such as in the case of the Chinese military.
Article 21, on the other hand, guarantees an individual the right to life, which cannot be deprived except by procedure established by law. The court in the case of Justice K.S. Puttaswamy v. Union of India recognized decisional autonomy, i.e., self-determination and informational privacy, as extensions of the right to life under Article 21. However, this again only extends to privacy of stored information and not information that is being extracted without actual articulation by the individual.
ii. Statutory Regime
There are only two existing statutes that could potentially address this issue, namely, the Information Technology Act, 2000, and the Indian Penal Code, 1860.
Firstly, Sections 66E and 72 of the Information Technology Act, 2000, do provide protection against violations of confidentiality and privacy and disclosure of information with the intention of protecting the personal data of an individual and preventing the exploitation of such information by intermediaries. But this protection is only extended to violations caused by the use of computer resources and electronic transactions and does not include the mind of an individual and his autonomy over the same.
Secondly, Section 44 of the Indian Penal Code, 1860, recognizes that harm caused to the mind will amount to injury. But this only comes into play when there is injury to the mind and not a violation of rights caused through mind-reading and manipulation.
iii. Upcoming Laws
Firstly, the proposed Digital India Bill aims at adjudicating user harm and re-iterating digital user rights. Although the Bill acknowledges neuro-technologies within the category of “wearable tech,” the regulations primarily focus on Know Your Customer (KYC) requirements imposed prior to market entry. These regulations fail to address the subsequent violation of neuro-rights.
Secondly, Section 3(36) of the Digital Personal Data Protection Bill categorizes personal data to include any data about an individual who is “identifiable by or in relation to” such data. But personal data breaches pursuant to Sections 2(14) and 2(16) of this Bill have been defined to only relate to data stored in the digital space. Further, the bill empowers the Central Government to exempt the processing of personal data by its agencies under the pretext of maintaining public order. This provides a real and apparent chance for the state to violate the cognitive rights of the individual, like in the case with China.
IV B. International perspectives
i. International Conventions
The right to cognitive liberty has not been explicitly recognized on an international level. In the European Union, at best, freedom of thought has been recognized by Article 9 of the European Convention on Human Rights, and Article 10 of the European Council on Foreign Relations. Other international laws, such as the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, also recognize freedom of thought.
However, freedom of thought and privacy of thought are two different concepts. And the right to cognitive liberty would entail both. The only scope for inclusion is through Article 12 of the UDHR, which guards against arbitrary interference with privacy, family, home, or correspondence and against attacks on his honor and reputation, was recognized by the United Nations in 2018 to include issues of the digital age.
ii. Foreign Jurisdictions
Chile was the first country in the world to take cognizance of neuro-rights and take steps for their protection. Through a Constitutional Amendment, they introduced the first ever effort to recognize mental identity as a non-manipulable right. The Bill recognizes and endeavors to prominently protect five rights, including mental privacy, personal identity, freedom of thought, and equitable access to technologies that enhance human capabilities.
The second, and only other nation to implement a similar law was Spain. The 2021 Spanish Charter extends the existing rights recognized in texts such as the Declaration of Human Rights and the Spanish Constitution to acknowledge and adapt to digital reality. Article 1 guarantees the right to free individual self-determination and the guarantee of freedoms implies the right not to be traced or to be subjected to personality or behavioral analyses involving the profiling of a person. Article 2 guarantees that the law will regulate the use of those technologies that are beyond their therapeutic application, including mental augmentation and enhancements of human capabilities.
IV C. Recommendations
Based on the aforementioned international perspective and needs of the transhumanism era, the authors propose the following recommendations for India’s regulatory regime of the right to cognitive liberty.
i. As rightly observed by Justice Chelameshwar, to construe that whatever is not explicitly found in the text of the constitution cannot become a part of it, would be too primitive an understanding of the constitution. Hence, firstly, there should be an interpretation by the Supreme Court to include the right to cognitive liberty as a fundamental right under Article 21. This inclusion must involve recognition of the mental identity and grant it the right to privacy. Secondly, freedom of thought under Article 19 must include freedom from any external, uncalled intervention in thought. As held in Abood v. Board of Education, an individual should be free to believe as he will.
ii. A charter of neuro-rights pursuant to this constitutional amendment or interpretation must be drawn. This draft must be done through a participatory process with contributions from an established expert group or advocacy association, citizens, and corporate stakeholders who have royalties over the neuro-technologies. This charter must include rights relating to:
a. Preserving the sense of self.
b. Guaranteeing individual self-determination, sovereignty, and freedom in decision making without the influence of neuro-technologies.
c. Safeguarding the confidentiality and security of data obtained in relation to brain processes and their control over the same.
iii. The only exception to these principles would be the consented therapeutic application of neuro-technology. Such consent should be obtained in written-format only after clear explanation of the potential effects and processes.
iv. The unlawful usage of any data received through any neuro-technology must be construed as theft pursuant to Section 378 of the Indian Penal Code, 1860. Further, the non-consented application of neuro-technology to a person must be construed as force pursuant to Section 349. This criminalizes the interference through manipulation and violation of a person’s thoughts and discretion to make a conscious choice.
v. A neuro-ethics society similar to the International Neuro-Ethics Society, which provides a platform for scholars and professionals to exchange their ideas and research with respect to neuro-ethics must be created in India to overlook the application of the aforementioned rights as well as consistently update them in consonance with any upcoming neuro-technology. It should also be granted power to license any neuro-technology in India before its entry into the market.
V. Conclusion
The right to cognitive liberty is an important right that should be explicitly recognized, especially in the context of potential abuses of growing neuro-technologies. Despite the possible medical benefits they offer, they raise substantial ethical and legal concerns on issues relating to privacy and freedom of thought, among others. The way forward would constitute extensive consultation, debate, and revision, the time for which would be extended even further by conceivable political resistance, a lack of cooperation from the private sector, and the complexity of the legal implications involved. Further, after implementation of the right, incorporation should follow, which would be slow and incremental. Yet, every man’s house is his own castle, and in the best interest of civil society, the process should be accelerated.
The authors are students at Symbiosis Law School, Pune.
NUALS Law Journal 