At present “Privacy Right” is considered as a “Right to be let alone”. However, in practice, “Protection of Privacy Rights” is reduced to “Protection of Information Privacy” which is essentially, giving protection to the “Right of Choice” of an individual on how his/her personal information is collected, processed, stored, disclosed or destroyed.
Laws related to Privacy Protection therefore focus on “Data Protection” and prescribe how personal data is defined, how it should be collected, what are the limitations of processing, what are the rights given to the data subjects etc.
However, the emergence of technology which can interfere with the way human brain communicates with the organs of the body gives raise to a new harm threat that the “Right of Choice” itself may get manipulated.
Hence there is a need for new laws that protect the possibility of the integrity of the expression of “Right of Choice” to be protected. The Neuro Rights Protection falls in this domain. Though this is also referred to as “Mental Privacy”, since currently the “Right to be left alone” is also referred to as “Mental Privacy”, it is preferable if we refer to the new branch of study of Neuro Rights as “Neuro Privacy”.
One definition of “Neuro Rights” presently used is that it refers to the “Legal and ethical principles of freedom and entitelment related to an individual’s cerebral or mental domain”.
Just as Neuro privacy differs from the “right of choice”, it also is different from the “Manipulation of a data subject’s choice” through advertising.
In “Advertising”, certain information is presented to a data subject which he perceives through his normal sensory organs and because of persistency of communication, starts accepting it as a possibility and converts it into an acceptance.
The normal principles of marketing and advertising takes communication through the “AIDAS” stages involving “Awareness”, “Interest generation” “Desire Development”, “Availability of product” and “Satisfaction at post purchase level”.
In order to make Advertising and Marketing effective, it is necessary to know the nature of the communication recipient and what motivates him. An advertisement exposed to the general audience without market segmentation and development of communication content relevant to the audience would be a huge waste of resources. It is therefore necessary for advertisers to understand the market participants to whom the communication has to be targeted.
For this purpose all advertisers undertake profiling of the end recipients of an advertising and marketing effort which is frowned upon by Privacy activists. However, laws try to balance the requirements of business with the privacy concerns by specifying stronger procedures for obtaining an “Informed Consent” in the form of “Explicit Consent”.
Businesses like Google and Meta are however often accused of misrepresenting and obtaining consent by unfair means and this becomes one of the main disputes that the data protection authority has to manage.
In the case of “Children” who are considered incapable of giving consent, profiling or targeted advertisements may be completely banned as in Indian law while “Parental Consent” is obtained in certain circumstances.
The “Neuro Privacy” addresses a different concern which is different from “Target Advertising”. Neuro Modulation Technology (NMT) involves changing the behaviour of the brain of a subject so that what he expresses as “Consent” or “Choice” is perhaps corrupted with the NMT devices. Who has given the consent? Is it out of free will? becomes difficult to ascertain when a subject could be under the influence of a “Brain-Computer Interface”.
Hence there is a demand for recognition of a new set of rights under the family of “Neuro Rights”. At present, Five different rights are being identified in this group namely
- “Mental Privacy” which is a right to control collection, storage, use or disclosure of “Neuro Data”. “Neuro Data” is collected from devices which we call the “Brain-Computer Interface” (BCI) or “Brain Machine Interface” (BMI). This would be a “specially sensitive personal data” and can even be brought under the definition of “Critical data” under the Indian law
- “Personal Identity” meaning that technologies should be kept within boundaries so that they donot disrupt the sense of “Self”.
- “Free Will” which provides ultimate control to individuals over their own decision making without unknown manipulation from external Neuro technologies.
- “Fair Access to Mental Augmentation” meaning a fair access to useful mental enhancement neuro technologies on the basis of justice and guaranteed equality of access
- “Protection from Bias” meaning counter measures to combat bias for algorithms in neuro technology.
We are aware that the Indian data protection law (DPA 2021) does recognize “Harm” including “psychological manipulation which impairs the autonomy of the individual”, and also provides an option to define “Neuro data” as a special category of personal data which is considered “Critical Data”. With these two aspects, the current DPA 2021 may be interpreted adequately to protect all the above 5 rights.
However just as the Privacy activists were not able to accept judiciary reading down down Information Technology Act 2000/8 as a data protection Act, the Privacy activists may not be able to accept the DPA 2021 as also inclusive of the Neuro Rights Protection. Hence it may be necessary to bring an appropriate subordinate legislation or an amendment of the act in due course to protect the Neuro Rights.
At present there are more than 130 countries having Privacy Laws but only one country with laws on Neuro Rights. We may therefore consider that it would take some time for the world to recognize the need for legal protection to Neuro Rights.
However when we look around and see the pace at which technology is developing and its destructive powers, it is better to be ready with a legislation before the technological developments go out of hand.
We have seen how the Crypto Currencies are threatening the very existence of a global economic system because we are not able to bring a law to regulate Crypto Currencies. Similarly Meta Verse as well as AI are likely to go out of control soon since there are no proper regulations to prevent their misuse. We should not make the same mistake in the case of Neuro Rights and remain complacent. It is better early than being late.
Hence we need to start using the DPA 2021 to provide coverage to Neuro Rights also even as the concept is further refined and brought into a future legislation with a better clarity.