The start of parliamentary processing of the bill “on the protection of neuro-rightness and mental integrity, and the development of research and neurotechnologies” (Bulletin No. 13.828-19), sponsored by Senators Girardi, Goic, Chahuán, Coloma and De Urresti, requires paying attention to some of the legal-philosophical problems of considering neuro-rights as new human rights. As we will see, the main problem behind the pretence of regulating neurodereches is their lack of definition, their conceptual inaccuracy possibly derived from scientific knowledge about the terms used by the standard. Thus, for example, the project defines neuroderechos as “New human rights that protect the mental and psychic privacy and integrity, both conscious and unconscious, of people from the abusive use of neurotechnologies” (art. 2D). But what should we understand by “mental” and “psychic,” in what ways would two different entities be?
The term “mind reading” has been used to describe the mechanisms used by brain-computer interfaces (BCI) and neural decoding using neurotechnologies. In the philosophy of the mind, the mind refers to mental states (imagination, emotions, intentions, perception, decision making, etc.), and with brain interface technologies, neuroscience can now highlight some correlations between mental states and brain activity. Therefore, there is a material basis for the mind. However, access to some material basis of mental states remains fragmented and does not simultaneously encompass all aspects of the mind[1]. In other words, neural correlates are still physical traces of the expression of the mind, but they are not enough to think that they constitute the mind as a whole and that, from them, a thought can be accessed. One thing is fragmented neural footprint data and another is a very different thought.
The most advanced research currently on interfaces is conducted by Edward Chang Chang and recently published in Nature, “Speech synthesis from neural decoding of spoken sentences” [2]. It seeks to understand the basic science of how the brain controls our ability to speak, in order to help people with difficulty communicating. However, the technique can only read “signals” of speech, not what we are thinking, not internal thoughts, because such research is not really possible at this time and may never be[3]. Even if we could perfectly distinguish the words that someone tries to say from the signals emitted by their brain, we would not even be close to reading the mind or thinking, because technology only allows us to look at the areas that are relevant to the motor aspects of speech production, not what constitutes a thought. The truth is that we don’t even know conceptually what a thought is and how a thought occurs, so talking about “reading the mind” is still just metaphysical.
Another problem of the project derives from the definition that makes what you want to regulate: neurotechnologies. They would be “the set of non-pharmacological devices, methods or instruments that allow a direct or indirect connection to the nervous system”. Now, it is not understood, however, to what extent we could distinguish such methods from other types of non-pharmacological technological advances which, for a long time and on a regular basis, observe, alter and determine our psyche. From television to the internet, from psychological and psychiatric therapies to CT scans, from the chlorinated implant to brain surgeries, all instruments capable of stalking or radically altering what the project calls “personal identity” or free will.
Finally, if the project is analyzed from a philosophical perspective it is observed that those who defend the “neuroderechos” adhere to a reductionist theory of cognitive neuroscience[4]. Reductionism is born from the ancient Cartesian confusion expressed in dualism mind/body, which today has been replaced by another equally erroneous dualism: brain/body.
Although in the first case it is necessary to believe in a non-material substance and the second in a material, both reductionisms share the same conceptual problems. The main one of them (called “Falacia Merheological”[5]) explains that the mind is neither an identical nor distinct substance from the brain and attaching psychological attributes to the brain is inconsistent, as thought and sensation are attributes of the human being, not his brain. Not just one of its parts. The human being is a psychophysical unit, a conscious animal that can perceive, act intentionally, reason, have emotions, use a language and be self-aware. Not a brain inside the skull of a body. So it is a pretence of “Cartesian reductionist” cutting that it is necessary to build new rights in order to protect a specific part of the human body, the brain, because it would find its identity.
It is one thing to suggest correlations between a subjective and complex whole (e.g. the activity of deciding) and some particular physical part of that ability (such as neural shots) and another insinuating that the part (the brain) is the whole (the person). These claims are not false, but, as Wittgenstein claimed, they are meaningless. “Only of living human beings and what they are similarly resembled (behaves in a similar way) can we say that they have sensations, see, are blind, hear, are deaf, are conscious or unconscious”[6]. So when John Searle referred to the brain’s role in pain concluding that “pain in the foot is literally in the physical space of the brain”[7], committed precisely the mereological fallacy, ignoring that the experience of pain is only susceptible to being attached to the human animal as a whole, not to one of its parts.
In line with Rorty’s classic mental experiment[8], it can be said that in order for the brainscope to interpret a particular pattern of neural activity as representing my experience of seeing [un] Red bus, needs more than to be able to record the activity of all those neurons at this present time, about a few seconds of recognition and action. It must have been attached to my brain and body since conception, or at least from birth, in order to record my entire history of neural and hormonal life.
So, and only then, could I decode the neural information[9]. In the same sense, let’s say I put my signature on a document. Although the act of putting my signature is accompanied by neural shots in my brain, those neural shots do not explain what I have done, because by signing my name I could be signing a check, giving an autograph, legitimizing a will or signing a death certificate.
In each case, the neural shot is the same and yet the meaning of what I have done when putting my signature is completely different in each case and those differences are “circumstance dependent”, not just the product of my neural shots. Neural shooting accompanies the act of signing, but only the circumstances of my signature, including the intention to do so, are the significant factors in explaining what I have done[10]. Cognitive neuroscience today is only able to identify where those neural “shots” come from, but it has no more idea of their meaning than Google or Facebook has when we like an image we like.
It is worth not exaggerating what these technologies can do and knowing about us, because the truth is that the data we deliver daily to tech giants – by using smartphones, Amazon’s Echo, Alexa, or Google Assistant – also allows them to understand and predict our behavior without us being able to say that they can read our minds.
[1] Rainey, S., Martin, S., Christen, A. et al. “Brain Recording, Mind-Reading, and Neurotechnology: Ethical Issues from Consumer Devices to Brain-Based Speech Decoding”. Sci Eng Ethics 26, 2020: 2295–2311
[2] Anumanchipalli, GK, Chartier, J. & Chang, EF “Speech synthesis from neural decoding of spoken sentences”. Nature 568, 2019: 493–498.
[3]Edward Chang on “Why computers won’t be reading your mind any time soon”, Wired. 12 March 2020.
https://www.wired.co.uk/article/brain-computer-interfaces.
[4] Bennett, M.R. and Hacker, P.M.S. Philosophical Foundations of Neuroscience, Blackwell Publishing. 2003.
[5] Ob cit., Bennett and Hacker. 2003.
[6] Wittgenstein, L. Philosophical Investigations, 1999, Altaya S.A., No. 281.
[7] Searle, J. The Rediscovery of the Mind, MIT Press, 1992: 63.
[8] Rorty, R. Philosophy and the Mirror of Nature. New Jersey: Princeton U.P. 2 ed., New Jersey. 1980.
[9] Ob.cit, Rainey, S., Martin, S., Christen, A. et al. 2020.
[10] Patterson, D. Philosophical Foundations of Neuroscience. Bennett, M.R. and Hacker, P.M.S. Notre Dame Philosophical Reviews. 2003. https://ndpr.nd.edu/news/philosophical-foundations-of-neuroscience/
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