The rapid development in neurotechnology raises significant human rights concerns. A normative analysis of this emerging technology’s ability to interfere with individual’s mental processes, highlights the lack of a clear human rights framework protecting the human mind. In this chapter, we will outline the interplay between neurotechnology and the right to freedom of thought, as well as the plea for new neurorights. First, we will examine how neurotechnology interferes with people’s mental sphere, and how this may put human rights – and the right to freedom of thought in particular – at risk. Second, we analyse how the international community addresses the disruptive impact of neurotechnology and which role the freedom of thought is attributed in these efforts. Third, we explore the impact on this freedom, its capacity to address the challenges emanating from neurotechnology, and how it may be reconceptualised to serve as an effective safeguard. Finally, we offer general remarks on the necessity of new neurorights and explore the current positions of various international and supranational institutions on this issue.

Although section 2(b) of the Canadian Charter of Rights and Freedoms specifies the fundamental freedoms of ‘thought, belief, opinion and expression, including freedom of the press and other media of communication’, only freedom of expression has been developed by the courts. These forgotten freedoms include freedom of thought. This chapter demonstrates how Canada’s own constitutional text and history supports a new recognition of freedom of thought that would overcome a recent history of forgetting this constitutional freedom. Canada’s own constitutional case law, read creatively, contains the seeds of a framework for freedom of thought, with upcoming potential to put arguments before the courts in cases where significant litigation efforts will be made. This chapter sets how the Canadian Charter protects specific elements of the right which are mental privacy, mental liberty and mental autonomy. The contemporary debate within the present international discussion generates an intellectual atmosphere and comparative case law that can support a remembering of the forgotten freedom of thought.

Liberty of thought is the first liberty that the Preamble to the Constitution of India aims to secure. Yet, one finds no mention of ‘thought’ as one of the protected freedoms under Part III of the Constitution, which safeguards fundamental rights. This chapter takes the first steps to address this riddle and locating the normative foundations for the right. It argues that while the Preambular ideal itself is insufficient to confer a substantive right, its role in judicial interpretation, along with the interrelationship between fundamental rights, provides a robust normative foundation for the right to freedom of thought in India. Specifically, the chapter discusses the development of the right to mental privacy in the context of brain-reading in Selvi, and later in Puttaswamy. The right to (mental) privacy read into dignity by the Supreme Court of India already takes steps towards constructing a forum internum, and on the other hand, the challenge of the vulnerability of the legal subject becomes evident in the context of the right to freedom of conscience. Regarding the absolute nature of the right, this chapter argues that only as a Preambular ideal is the liberty of thought absolute within the Indian legal framework.

In recent discussions on the right to freedom of thought (RFoT) it has been emphasised that for an adequate understanding, development, and application of the right, one should consider how the RFoT relates to or complements other rights, such as the right to mental privacy, mental integrity and the freedom of expression. In this chapter, we examine the interrelationship between the RFoT and the protection of mental privacy and mental integrity. Considering the case of employing emerging neurotechnology in criminal justice, we explore how the absolute protection offered by the RFoT relates to the qualified protection of mental privacy and mental integrity offered by the right to respect for private life. We argue that, depending on the interpretation of these rights, they have the potential to overlap, which raises the need to develop a legal mechanism to distinguish absolute from qualified protection of mental privacy and mental integrity. We suggest three general factors that could be relevant in this regard: (1) the mental effects of an interference and the method of inducing them, (2) the victim’s vulnerability, and (3) the context of a mental interference.

In this chapter, Philipp Kellmeyer discusses how to protect mental privacy and mental integrity in the interaction of AI-based neurotechnology from the perspective of philosophy, ethics, neuroscience, and psychology. The author argues that mental privacy and integrity are important anthropological goods that need to be protected from unjustified interferences. He then outlines the current scholarly discussion and policy initiatives about neurorights and takes the position that while existing human rights provide sufficient legal instruments, an approach is required that makes these rights actionable and justiciable to protect mental privacy and mental integrity, for example, by connecting fundamental rights to specific applied laws.

Emerging neurotechnology offers increasingly individualised brain information, enabling researchers to identify mental states and content. When accurate and valid, these brain-reading technologies also provide data that could be useful in criminal legal procedures, such as memory detection with EEG and the prediction of recidivism with fMRI. Yet, unlike in medicine, individuals involved in criminal cases will often be reluctant to undergo brain-reading procedures. This raises the question of whether coercive brain-reading could be permissible in criminal law. Coercive Brain-Reading in Criminal Justice examines this question in view of European human rights: the prohibition of ill treatment, the right to privacy, freedom of thought, freedom of expression, and the privilege against self-incrimination. The book argues that, at present, the established framework of human rights does not exclude coercive brain-reading. It does, however, delimit the permissible use of forensic brain-reading without valid consent. This cautionary, cutting-edge book lays a crucial foundation for understanding the future of criminal legal proceedings in a world of ever-advancing neurotechnology.

Emerging neurotechnology offers increasingly individualised brain information, enabling researchers to identify mental states and content. When accurate and valid, these brain-reading technologies also provide data that could be useful in criminal legal procedures, such as memory detection with EEG and the prediction of recidivism with fMRI. Yet, unlike in medicine, individuals involved in criminal cases will often be reluctant to undergo brain-reading procedures. This raises the question of whether coercive brain-reading could be permissible in criminal law. Coercive Brain-Reading in Criminal Justice examines this question in view of European human rights: the prohibition of ill treatment, the right to privacy, freedom of thought, freedom of expression, and the privilege against self-incrimination. The book argues that, at present, the established framework of human rights does not exclude coercive brain-reading. It does, however, delimit the permissible use of forensic brain-reading without valid consent. This cautionary, cutting-edge book lays a crucial foundation for understanding the future of criminal legal proceedings in a world of ever-advancing neurotechnology.