The development of technology has significantly impacted our lives; algorithms predicting our interests, preferences, and even health. The rise of devices enabling people to post on social media or play video games using just their thoughts has raised concerns about the consequences for human privacy and freedom. Artificial intelligence, beyond GPT chat, has managed to determine the words and images an individual thought based on the interpretation of their neural information. While the benefits for human well-being brought by devices directly interacting with the human brain are immense, the ethical debates surrounding these advancements raise concerns about human freedom and limitations in utilizing such technologies.
Neurotechnology encompasses instruments enabling direct connection of the nervous system with technological devices. The Law Society of England and Wales defines neurotechnology similarly, emphasizing the capacity of these devices to 'monitor and record neuronal activity and/or influence it. The first use of neurotechnology dates back to 1924 when Hans Berger conducted the first human electroencephalogram (EEG). Subsequently, technology advancements allowed for more efficient collection of neural data and also interference in brain functions. Brain-computer interfaces (BCIs), capable of mapping, assisting, enhancing, and even repairing brain activities, were developed. These activities not only impact human motor skills but also influence thoughts or cognitive abilities. The risk of privacy violations or encroachments on personal freedom due to cerebral intrusion raises questions about the safeguards our laws offer to protect our most private sphere: our thoughts. This ethical debate is evident in neuromarketing, using neurotechnology to influence product need. Although initially thought by early advocates of neuroprotection that the commercialization of BCIs would take decades, today, we find devices in the market monitoring brainwaves or even enhancing concentration through neural data collection and sensory deprivation.
In 2017, Ienca and Andorno determined that the problems arising from the implementation of neurotechnologies could not be resolved with existing regulations safeguarding human rights in international instruments. Authors identified the need for rights specifically protecting the human neural realm, proposing four specific protection areas: cognitive freedom, mental privacy, mental integrity, and psychological continuity. While legal discussions had previously covered aspects of these rights, the commercialization of BCIs and the capacity of companies - and the State - to access and use this information call for a reinterpretation of recognized rights at minimum.
Ultimately, neuro-rights are freedoms or rights related to human mental domain. The Latin American and Caribbean Model Law of Neuro-Rights, proposed by the Latin American and Caribbean Parliament, aims to protect the brain and its activity with technological advances. However, protecting the brain itself can be achieved through safeguarding the human's physical integrity, encompassing its entirety. The substantial issue lies in the distinction between mind and body that identifies us as humans. Chile is considered a pioneer in protecting neuro-rights since late 2021, approving a constitutional amendment. Brazil followed suit in amending its constitution. Currently, Spain recognizes neuro-rights protection through the Digital Rights Charter, acknowledging 'Digital Rights in the use of Neurotechnologies' in Section XXIV. Hence, the global trend is to acknowledge these rights and their guarantees.
Before the dissolution of the National Assembly due to 'crossed death' on March 6, 2023, Ecuador presented the Organic Law Project of Digital Rights to the Assembly's secretariat. This legislative initiative awaits qualification by the Legislative Administration Council to determine priority and the Commission responsible for resuming proceedings once the new National Assembly is in session. The project consists of 39 articles, three transitional provisions, and a final provision. Among its articles, the project aims to recognize 33 rights somewhat related to the digital environment. Article 26 recognizes, among others, the right to non-algorithmic discrimination in artificial intelligence systems, while Article 27 acknowledges the right to mental integrity and not to be subject to decisions based on biased neurotechnologies. Article 28 refers to the guarantees of these rights but does not establish a specific mechanism or procedure for their protection, only mentioning the possibility of invoking 'the guarantee of these rights by the administrative authority or the competent jurisdictional body in Ecuador.' Although the recognition of these rights seems to signify progress in Ecuadorian legislation, their effective protection could develop through safeguarding other already recognized rights in Ecuador. It seems illogical for a bill to aim at recognizing 33 rights when its constitution recognizes 99 more, making it the Constitution that recognizes the most rights globally. James Madison's fear, that rights are mere parchment barriers, rings true in Ecuador.
Ecuador is not the birthplace of primary initiatives aiming to map or manipulate the brain, as seen in the US, China, or Europe. However, the commercialization and use of BCIs by Ecuadorians could occur as rapidly as in any other country.
The right to cognitive freedom refers to controlling our thoughts and the ability to modify our mental states, essential for other freedoms. There's debate on the extent of this right, especially concerning external influences on our mental processes. In Ecuador, it associates with the right to personal integrity, protecting against mental coercion. In the absence of specific protection in the law, judicial protection serves as an effective path.
Mental integrity, unlike freedom of thought, seeks to preserve the mind from any harm, even that generated by social media algorithms. Defining and recognizing mental harm poses difficulties. The Ecuadorian Constitutional Court distinguishes between psychic and moral integrity, reserving the former for protection against mental damages and the latter for respecting personal convictions.
The right to mental privacy concerns control over access to neuronal information and mental processes. In Ecuador, this information is considered part of health-related data, enjoying special protection. Habeas Data is the constitutional guarantee to protect this right, allowing the owner to request access, modification, or deletion of their neuronal information.
Psychological continuity aims to preserve people's identity and protect against unauthorized intrusions into their mental activity, even if they cause no harm. This right relates to the right to personal identity recognized in the Ecuadorian Constitution.
Despite the lack of explicit recognition of neuro-rights in Ecuadorian legislation, the rights already acknowledged at the constitutional level encompass their scope. However, it underscores the need to evaluate the implications of technology on fundamental rights and the absence of an impact analysis in the creation of legal frameworks, which could hinder the effectiveness of existing laws.
Article provided by INPLP members: Andrés Terán (HEKA LAW FIRM, Ecuador)
Dr. Tobias Höllwarth (Managing Director INPLP)