Prof Nita Farahany: ‘We need a new human right to cognitive liberty’

Our brainwave activity can be monitored and modified by neurotechnology. Devices with electrodes placed on the head can record neural signals from the brain and apply low electric current to modulate them. These “wearables” are finding traction not only with consumers who want to track and improve their mental wellness but with companies, governments and militaries for all sorts of other uses. Meanwhile, firms such as Elon Musk’s Neuralink are working on next-generation brain implants that could do the same thing, only with far greater power. While the initial use may be to help people with paralysis to type, the grand idea is for augmentation to be available to all. Nita Farahany, a professor of law and philosophy at Duke University who studies the ethical, legal and social ramifications of emerging technologies, is sounding the alarm.

Technology that can read our minds sounds terrifying. But it is also way ahead of where things are. Aren’t you jumping the gun?
I don’t think so and, furthermore, we dismiss it at our peril. While the technology can’t literally read our complex thoughts, there are at least some parts of our brain activity that can be decoded. There have been big improvements in the electrodes and in training algorithms to find associations using large datasets and AI. More can be done than people think. There are a lot of real-world applications and major tech companies like Meta are investing in it.

What’s the danger?
There are profound risks from both the commodification of the data but also what it means to have your brain activity monitored by others and what that does to freedom of thought. The technology is at an inflection point: use is ascending steeply but it is not yet mainstream. We have a moment, before the terms of service are set by others, where we can have a voice in how it is used and deployed in society.

What uses most worry you?
Applications around workplace brain surveillance and use of the technology by authoritarian governments including as an interrogation tool I find particularly provocative and chilling. We do see the technology starting to be used in some ways that are more like involuntary neural surveillance.

I suspect we will come to forget that the earbuds we are using to make a conference call can also track brainwave activity

What should we set in place to protect ourselves?
To start we need a new human right to “cognitive liberty”, which would come with an update to other existing human rights to privacy, freedom of thought and self-determination. All told it would protect our freedom of thought and rumination, mental privacy, and self-determination over our brains and mental experiences. It would change the default rules so we have rights around the commodification of our brain data. It would give people control over their own mental experiences and protect them against misuse of their brain activity by corporate and government actors, weighed against societal interests.

Plenty of technology to digitally monitor workers is already in use. What extra could employers get from monitoring brain activity? And wouldn’t it be a bit cumbersome to wear at work?
The extra is what is hidden inside your brain that wasn’t expressed in your email and wasn’t on your computer screen. It includes things like your level of fatigue, engagement, focus, boredom, frustration and stress – metrics that purportedly can be measured with high accuracy.

The form was weird headbands a decade ago but now we’re talking about the same devices that you’re using already in the workplace – headphones and earbuds – simply also having brain sensors. I suspect we will quickly come to forget that the same earbuds that we are using to make a conference call can also track brainwave activity, just in the same way we forget our phones are tracking everything about us.

One touted use is criminal justice. The US firm Brainwave Science sells so-called “brain fingerprinting” technology it says will “transform your interrogations”. The company claims to have numerous international government security agencies as customers. We have a societal interest in catching criminals…
The US criminal justice system, as far as we are aware, does not use these techniques and, if it did, criminal defendants would need to submit to it voluntarily. But whether other parts of the US government are using it is unclear. The use is troubling, and I don’t think it is justified. There is scepticism about the scientific validity and we have also almost always relied on the need for investigators to gather and develop a case against an individual without going to the criminal themselves because of the abuse that can happen.

How concerned are you about the military applications of neurotechnology – so called “brain control” weaponry?
Deeply concerned and particularly so when it comes to authoritarian regimes like China, who could prevent or quell demonstrations in ways that are powerful and sinister. The Biden administration has sanctioned Chinese research institutes and firms for their purported investment in brain-controlled weapons. Potential possibilities with this type of weaponry include mental manipulation of individuals to shape their thinking, brain control interfaces where weapons can be controlled with the power of thought and microwave weapons that might be used to mentally disorient large numbers of people. International action against the development and use of this type of weaponry would help.

Would you ever consider a brain implant?
Based on today’s technology, no way. None of it is safe or effective for healthy individuals. But, in time, maybe. Needed would be an acceptable safety profile, applications that would make me interested and really strong rights to give me confidence my data and access to my brain wouldn’t be misused.

What applications might be compelling? A big reason why much-hyped Google Glass was ultimately rejected was because it didn’t have any…
The idea of a more seamless brain-to-technology interaction could be compelling for some people. In the same way you use a mouse and a keyboard, you could just use your brain. You could turn on the lights or adjust the thermostat just by thinking about it.

Probably more compelling would be the ability to communicate brain to brain with another person. If I could transfer you a full resolution thought or share with you a memory in my brain – the sight, the smell, my feelings – it would be transformational for how we communicate and empathetically relate to one another.

Is there a risk of brain implants being hacked?
It’s a terrifying possibility. And I worry not just about somebody monitoring your thoughts, but also manipulating them or trying to instil new thoughts and experiences. If “brainjacking” did occur, it could kill the tech: people might decide that the risks are too profound to use it. Or maybe it won’t bother us so much: we take so little care in protecting our online privacy, even when we claim to want it.

  • The Battle for Your Brain by Nita Farahany is published by St Martin’s Press on 14 March (£25.99). To support the Guardian and Observer, order your copy at Delivery charges may apply