In an era where data is the gold of the 21st century, it is not surprising to see the growing interest of neurotechnology companies in deciphering their ultimate source code: the human brain. This, added to the fascination aroused by this vital organ, still largely unknown to science, foreshadowed the magnitude of the problem it faced.
This was warned, already in 2017, by different authoritative voices from the Social and Legal Sciences and Neurobiology, in which the two most cited articles on the subject are found. Both urge the relevant authorities to establish a new general regulatory framework that protects the rights of the mind.
This urgency is due to the threat that a third party may access and, if necessary, deliberately interfere with human thought in contravention of the bioethical principle of autonomy.
In this sense, an initiative has been published that identifies five neurorights linked to human rights.
However, the existence of rights that grant international protection (art. 17 of the International Covenant on Civil and Political Rights) and, in most Western countries, constitutional considerations (to moral integrity, freedom and privacy, among others) ) have raised some of the legal issues. Doubts in the doctrine. Prevention arises from the risk of duplication and, consequently, inflation or even devaluation of rights.
In any case, as we will see, this is an unavoidable debate that is no longer just theoretical.
Chile, paradigm of leadership in neurorights
If there is a country in the world that has done it the victim of war of neurodata is, without a doubt, Chilean. After the passage of a constitutional amendment in late 2021 to preserve brain data, the Supreme Court ruling followed on August 9, 2023.
The plaintiff was Guido Guirardi, former Chilean senator and one of the promoters of the reform. In March 2022, Guirardi acquired the device. Advancenon-invasive wireless headphones that connect you to intelligent interfaces (brain-computer) developed by the company Emotional. Inc.. These sensors monitor brain waves to obtain many performance measures (such as concentration or stress) in real time. With them you can optimize productivity.
However, the applicant chose not to contract the PRO license offered on the website of Emotional. The free version did not allow him to import or export his own neurological activity, which was stored in the defendant’s cloud, requiring its deletion.
Around with consent
A central question is whether the user’s generic acceptance of the terms and conditions of the service is sufficient to tacitly protect any processing of their brain information. In the opinion of the Court of Appeals of Santiago, once free and voluntary consent is issued, privacy and confidentiality are not violated, which is why the appeal was rejected.
The Supreme Court corrects this ruling by specifying that the data collected cannot have different purposes that are not known or approved by its owner. In this way, the company must specify for what scientific research purposes they will be used and must indicate at least the branch of research that requires express and revocable consent.
This corresponds to the “unequivocal” character by requiring “a declaration from the interested party or a clear affirmative action.” Consequently, the ruling considers that physical and mental integrity and the right to privacy were violated (art. 19.1 and 19.4 of the Criminal Procedure Code). Chilean Constitution).
However, what is new is that the highest judicial authority subjects the marketing and use of the product to the precautionary principle.
On the one hand, it refers to its evaluation by the Institute of Public Health, in order to analyze its classification as a medical-therapeutic device. This is essential because, if so, it could be a special category of data whose processing is prohibited when it could reveal biometric information intended to uniquely identify health-related data (art. 9.1 of the General Data Protection Regulation). .
On the other hand, it appeals to the National Customs Service for not having the Customs Certificate of Destination. In other words, it is the lack of authorization from the competent authorities that underlies the estimation of the resource.
This is the line that, in fact, the proposed regulation on artificial intelligence follows by prohibiting the introduction of this type of practices into the market (considering 16 and art. 5.1).
Spain: a ruling that defends neuroscience
The neurological test has been the subject of analysis in Spanish jurisprudence since 2013; more precisely, thanks to cognitive evoked potentials (P300). This neurotest allows us to detect the activation of regions of the nervous system when faced with external stimuli (generally auditory or visual) in about 300 milliseconds.
The objective of this technology is to obtain relevant information about criminal acts or empirically verify what the mental state of the person under investigation was at the time of committing the illegal act. For example, if you suffer from an anomaly or psychological alteration that, depending on its permanence and severity, could exempt you from guilt and, therefore, from any criminal liability (art. 20.1 of the Penal Code).
In criminal procedural practice, bodies are only allowed to be located once the final sentence has been pronounced and with the consent of the convicted: Fernando Silva Sande in the case of businessman Publio Cordón and Miguel Carcaño in that of Marta del Castillo. , both without success.
But the ruling of the Supreme Court of May 5, 2020 (best known for being the one who prosecuted the so-called “Pioz Murderer”) seems to open the door to the future. Although the judge did not accept it due to lack of an expert neurologist capable of adequately interpreting it, he expressed doubts about the influence of neuronal determinism on free will and became an ardent defender of neuroscience.
This criterion was reinforced by the Report of the Fiscal Council to the draft organic law on criminal procedure, of July 7, 2021 in its Addendum 54.
At the legislative level, Spain is the European country that supported the Chilean initiative. Among other milestones, it is worth highlighting the Declaration of Digital Rights, of July 14, 2021, which regulates digital rights in the use of neurotechnologies. Your art here is interesting. 26.1.c), in which it orders: “Guarantee the confidentiality and security of the data obtained from or related to your brain processes, as well as complete control and disposition over them. »
Although it has the disadvantage of being a declaration of principles and, therefore, non-binding, it serves as a reference and encourages the legislator to frame it in the face of the challenges of the digital age.
More recent is the creation of the National Center for Neurotechnology (Spain Neurotechnology) at the Autonomous University of Madrid within the framework of the Digital Spain 2026 Strategy.
In short, the incessant activity in both countries poses latent risks for the organ that represents the last frontier of human identity and personality.
