Neuroscience, mental privacy, and the law.

• Author: Shen, Francis X.
• Position: Introduction through II. The Mental Privacy Panic, p. 653-679 - Privacy, Security, and Human Dignity in the Digital Age

INTRODUCTION I. GOVERNMENT USE OF NEUROSCIENCE IN LAW A. The Use of Neuroscientific Evidence in Law B. The Overlooked History of Neurolaw: The Case of EEG and Epilepsy II. THE MENTAL PRIVACY PANIC A. Seeds of a Mental Privacy Panic B. Mind, Brain, and Behavior C. Mind Reading Typology III. MIND READING WITH NEUROIMAGING: WHAT WE CAN (AND CANNOT) DO A. Lie Detection with fMRI B. Memory Detection with fMRI C. Memory Recognition with EEG D. Decoding of Visual Stimuli with fMRI IV. PROTECTING MENTAL PRIVACY: THE FOURTH AND FIFTH AMENDMENTS A. "Scholars Scorecard" on Mental Privacy B. Fourth Amendment C. Fifth Amendment V. ADDITIONAL THREATS TO MENTAL PRIVACY A. Competency and Parole B. Police Investigation, Employee Screening, and National Defense C. Future Developments CONCLUSION INTRODUCTION

"If there is a quintessential zone of human privacy it is the mind."

--Justice Allen E. Broussard, Supreme Court of California (1)

"If George Orwell had written Nineteen Eighty-four during our times, would he have put an MRI scanner in the Ministry of Truth?"

--Neuroscientist Jamie Ward, in The Student's Guide to Cognitive Neuroscience (2)

"fMRI is not and will never be a mind reader...."

--Neuroscientist Nikos Logothetis (3)

The first and second quotations in the epigraph capture a fear that many share about rapidly improving neuroscientific techniques: Will brain science be used by the government to access the most private of spaces--our minds--against our wills? (4) Such scientific tools would have tremendous privacy implications if the government suddenly used brain science to more effectively read minds during police interrogations, criminal trials, and even routine traffic stops. Pundits and scholars alike have thus explored the constitutional protections that citizens, defendants, and witnesses would require to be safe from such mind searching. (5)

Mind reading has also caught the public's imagination. Machine-aided neuroimaging (6) lie detection has shown up in popular television shows and films, including the show "Numb3rs," (7) and the action thriller Salt. (8) Most notably, the plot of the 2002 Tom Cruise movie Minority Report, (9) based on a short story of the same name by Philip K. Dick, (10) involved the government reading citizens" thoughts. In the movie, when criminal thoughts were detected, the government would react before the criminal act occurred. This "precrime" monitoring and enforcement, carried out by "PreCogs," was made possible in the movie by the fictional assumption that technology would develop to a point where the government could reliably determine a person's criminal intentions. (11)

Future-oriented thinking about where brain science may lead us can make for great entertainment and can also be useful for forward-thinking policy development. But only to a point. Too much talk of 1984, Minority Report, Inception, (12) and the like can generate a legal and policy debate that becomes too untethered from scientific reality. Consider this opening line from a law review note published in 2012: "In George Orwell's novel Nineteen Eighty-Four, the Thought Police monitor the thoughts of citizens, trolling for any hint of forbidden viewpoints. In 2012, functional Magnetic Resonance Imaging ('fMRI') of the brain may accomplish similar ends." (13) As the third quotation in the epigraph suggests, such claims about the current mind reading powers of fMRI are mistaken, and similar claims about the future of fMRI (and related) techniques should be carefully scrutinized. (14)

Such claims are the seeds of a mental privacy panic. (15) The panic script typically unfolds in the following way. First, it is observed that we are now on the verge of powerful mind reading technologies. Second, it is suggested that the state will use these technologies in devious ways. Third, it is argued that citizens (especially those suspected of criminal acts) will be powerless to stop these practices because necessary legal protections are not in place. Thus, so the script concludes, quick and drastic action is required to prevent the government from reading our minds.

In this Article, I reconsider these concerns about the use of brain science to infer mental functioning. The primary message of this Article is straightforward: "Don't panic!" (16) Current constitutional protections are sufficiently nimble to allow for protection against involuntary government machine-aided neuroimaging mind reading. The chief challenge emerging from advances in brain science is not the insidious collection of brain data, but how brain data is (mis)used and (mis)interpreted in legal and policy settings by the government and private actors alike.

Reconsideration of neuroscience and mental privacy should start by acknowledging a basic fact about the social nature of the human race: We are all natural mind readers. (17) As recognized in the introduction to a comprehensive volume on brain imaging and mental privacy, our brains "are well equipped by natural selection to read other people's minds." (18) One of the influential theories in psychology to describe this natural mind reading capacity is called "Theory of Mind" (ToM). ToM can be defined as "the ability to observe behavior and then infer the unobservable mental state that is causing it." (19) To "infer the unobservable mental state" is mind reading, and unless we are living in isolation, we do this type of mind reading every day. In law, we even sometimes codify such mind reading, such as when jurors are assigned the task of determining the mens rea of a criminal defendant. (20)

If mind reading is a skill that every normally developing human acquires, and if humans do it all the time in the course of life, why would we ever see--as we did in 2009--a headline in Newsweek announcing with great fanfare that "Mind Reading Is Now Possible"? (21) The reason that Newsweek ran this headline is that mind reading techniques using fMRI are new and thought to be inherently better than everything else that has come before. In particular, such media coverage suggests that machine-aided neuroimaging mind reading will unearth the contents of our minds without our permission (and perhaps even without our knowledge). We ought to be cautious in making this presumption. Just as legal scholar Stephen Morse has called for "neuromodesty" in the context of brain science and criminal responsibility, (22) so too should we be modest in making claims about the power of brain science tools to read minds against our will.

The question, "can the government (or anyone else) read your mind against your will?" is not a useful way to phrase the problem, because the answer to this question is an obvious "yes." As just discussed, humans--including those working for the government--are natural mind readers. Many remember moments when our parents only had to look at us (and the chocolate on our hands) to know that we were lying about grabbing an extra chocolate chip cookie. These traditional methods of mind reading have been with us since our earliest history. (23)

It is useful at this point to clarify terminology. I use the term mind reading throughout the Article to capture the myriad of strategies humans use to attribute mental states to others. (24) I distinguish between non-machine-aided, machine-aided (but not neuroimaging), and machine-aided neuroimaging methods of mind reading. Examples of non-machine-aided mind reading are using facial expressions and body language to gauge intent. Government officials routinely use such techniques to make inferences about the mental states of individual citizens. An example of...