Tesslingon My Brain: The Future of Lie Detection and Brain Privacy in the Criminal Justice System

Abstract

The criminal justice system requires reliable means of detecting truth and lies. A battery of emerging neuro-imaging technologies makes it possible to gauge and monitor brain activity without the need to penetrate the cranium. Bypassing external physiological indicators of dishonesty relied upon by previous lie detection techniques, some neuro-imaging experts believe in the possibility of reliable brain-scan lie-detection systems in the criminal justice system. Because future generations of neuro-technology will become smaller and sleeker, will have greater read ranges, and could one day interface with implantable microchips, some of those experts also believe in the possibility of remote, surreptitious brain surveillance. In this article, the authors examine such possibilities and assert that Canadian courts’ current approach to protecting privacy cannot easily accommodate the challenges caused by these emerging technologies. The article commences with an examination of the “reasonable expectation of privacy” standard adopted by the Supreme Court of Canada, arguing that various courts across Canada have misunderstood and misapplied the R. v. Tessling decision by way of an inappropriate analogy. After a description of brain-scan lie-detection systems, the authors then examine the courts’ use of the Tessling analogy in the context of brain privacy. In addition to demonstrating the danger in a generalized judicial proposition that there is no reasonable expectation of privacy in information emanating from a private place into a public space, the authors conclude that a more robust account of brain privacy is required and speculate about possible sources of law from which this might derive.

The Inheritance, Power and Predicaments of the “Brain-Reading” Metaphor

“…Although researchers are able to see the brain's bioelectrical activity in relation to specific goal-related tasks carried out in laboratories and have software that recognizes certain predefined paths of cerebral activity, this highly mediated and technological act of ''reading'' stands in stark contrast to some of the hyped promises for this technology: for example, promises to detect lying (Thompson 2005;cf. De Charms 2008: 724;Fenton et al 2009;Ireland 2007;Kerr et al 2008;Langleben et al 2002;Langleben 2008;Spence et al 2004), criminal intent (Barrie 2008;West 2007;cf. Khoshbin and Khoshbin, 2007;Krahn et al 2009;Marks 2007;Morse 17 Not uncommonly the brain is understood as a data device (e.g.…”

Privacy: Theoretical and Legal Issues

“…The test has also been used in the jurisprudence of the European Court of Human Rights as well as the English law of misuse of private information. The test is used in different contexts in different jurisdictions (Hughes, 2012) and its capacity to deal with the problems that we face is contested (Solove, 2010;Kerr, 2007Kerr, , 2008Hughes, 2012).…”

A Behavioural Understanding of Privacy and its Implications for Privacy Law

“…Canadian scholars have expressed similar concerns. Their concerns largely derive from Tessling and the way that it has been interpreted in subsequent decisions. As noted above, in Tessling the Supreme Court of Canada held that section 8 of the Charter was not engaged when the police used a thermal‐imaging device to measure the heat emitted from Tessling's home.…”