Forensic Brain-Reading and Mental Privacy in European Human Rights Law: Foundations and Challenges

Abstract

A central question in the current neurolegal and neuroethical literature is how brain-reading technologies could contribute to criminal justice. Some of these technologies have already been deployed within different criminal justice systems in Europe, including Slovenia, Italy, England and Wales, and the Netherlands, typically to determine guilt, legal responsibility, or recidivism risk. In this regard, the question arises whether brain-reading could permissibly be used against the person's will. To provide adequate legal protection from such non-consensual brain-reading in the European legal context, ethicists have called for the recognition of a novel fundamental legal right to mental privacy. In this paper, we explore whether these ethical calls for recognising a novel legal right to mental privacy are necessary in the European context. We argue that a right to mental privacy could be derived from, or at least developed within in the jurisprudence of the European Court of Human Rights, and that introducing an additional fundamental right to protect against (forensic) brain-reading is not necessary. What is required, however, is a specification of the implications of existing rights for particular neurotechnologies and purposes.

Novel Neurorights: From Nonsense to Substance

“…Consequently, there are no provisions in the human rights document to tackle new risks produced by technological innovations." 14 The former claim is correct, but the second, a premise of the proposal, does not follow. Law can apply to cases which lawmakers did not foresee because of the abstract and general nature of norms, especially of human rights.…”

“…There are no publications elaborating the proposed set of rights or individual rights, with the exception of one-mental privacy. The idea has received some scholarly attention (e.g., [9][10][11][12], with mixed results regarding its recognition as a standalone right [13][14][15]. Apart from that, I am not aware of a single peer-reviewed publication in the field of human rights or constitutional law that provides a clear and substantive statement about meaning or scope of the other proposed rights.…”

Is Virtually Everything Possible? The Relevance of Ethics and Human Rights for Introducing Extended Reality in Forensic Psychiatry

“…Whereas much case law and scholarship exist on the right to freedom of religion, belief, and conscience, freedom of thought is still an under-elaborated notion (Bublitz 2020a;Ligthart 2020). Since no human rights court has set out to define "thoughts," the precise scope of freedom of thought is still open for debate (Ligthart et al 2020).…”

Opening Pandora’s box: The right to silence in police interrogations and the Directive 2016/343/EU

“…The right not to incriminate oneself potentially applies not only to oral statements of the suspect with regard to the alleged offence, but also to other kinds and sources of (incriminating) information, the obtainment of which might require the suspect's cooperation, for example, written documents, forensic samples, smartphone passwords, or even such 'futuristic' sources as brain imaging. 50 Such information usually falls under a different legal regime and is subject to lower protections than oral statements concerning the incriminated offence, which fall squarely under the scope of the right to silence. 51 At the same time, distinguishing between these two types of information, namely, (oral) statements concerning the incriminated offence, and other information or material obtained from the suspect can, in practice, be problematic.…”