Is Your Neural Data Part of Your Mind? Exploring the Conceptual Basis of Mental Privacy

Abstract

It has been argued that neural data (ND) are an especially sensitive kind of personal information that could be used to undermine the control we should have over access to our mental states (i.e. our mental privacy), and therefore need a stronger legal protection than other kinds of personal data. The Morningside Group, a global consortium of interdisciplinary experts advocating for the ethical use of neurotechnology, suggests achieving this by treating legally ND as a body organ (i.e. protecting them through bodily integrity). Although the proposal is currently shaping NDrelated policies (most notably, a Neuroprotection Bill of Law being discussed by the Chilean Senate), it is not clear what its conceptual and legal basis is. Treating legally something as something else requires some kind of analogical reasoning, which is not provided by the authors of the proposal. In this paper, I will try to fill this gap by addressing ontological issues related to neurocognitive processes. The substantial differences between ND and body organs or organic tissue cast doubt on the idea that the former should be covered by bodily integrity. Crucially, ND are not constituted by organic material. Nevertheless, I argue that the ND of a subject s are analogous to neurocognitive properties of her brain. I claim that (i) s' ND are a 'medium independent' property that can be characterized as natural semantic personal information about her brain and that (ii) s' brain not only instantiates this property but also has an exclusive ontological relationship with it: This information constitutes a domain that is unique to her neurocognitive architecture.

Chilean Supreme Court ruling on the protection of brain activity: neurorights, personal data protection, and neurodata

“…This distinction, although it has not been addressed in data law, could be useful to demonstrate that structural data should have greater rights protection because they could violate the right to privacy to a greater extent, for example, when considering that storage of this data can lead to the detection of more perennial characteristics of the holder of this type of data. Likewise, the right to identity could be altered with neurotechnologies that modify structural neurodata to a greater extent; finally, psychological integrity could also be affected, even irreversibly ( Kandel et al, 2021 ; Wajnerman Paz, 2022 ; Lavazza and Giorgi, 2023 ; Ligthart, 2023 ).…”

Philosophical foundation of the right to mental integrity in the age of neurotechnologies

“…In order to comprehend the distinction between a third-person perspective and a first-person one, we should take into account the classic distinction between primary and secondary qualities as it was developed in modern philosophy. 5 Primary qualities refer to every aspect that belongs to the object and can be observed intersubjectively: they are qualities such as size, shape, number, mass, etc. On the contrary, secondary qualities include all the aspects that belong to the subject's experience of a given object and that pertain to their private perception.…”

“…On the contrary, secondary qualities include all the aspects that belong to the subject's experience of a given object and that pertain to their private perception. Indeed, this concept is inevitably linked to the state of consciousness of the self, which constitutes a substratum 5 It can be helpful to mention some contemporary views that introduce qualities not included in the dichotomy between primary and secondary ones. One of the most notable theories is that proposed by Naess [45], who devised the idea of tertiary qualities, namely properties that depend neither on the subject nor on the object but belong to concrete contents which are related one-to-one to an irreducible constellation of factors conceived in terms of subject, object and medium.…”

“…Our aim is to provide a basis and justification for the right to mental integrity (as described below) by referring to the fundamental characteristics of our mind as philosophical research has identified and described them -a task that the debate on neurotechnologies and neurorights does not yet seem to have considered carefully enough (cf. [4,5].…”

Is Mental Privacy a Component of Personal Identity?

“…A possible conceptualization of mental privacy as a cognitive dimension of privacy seems to bring it closer to our identity, thus perhaps grounding the Morningside group's view. Given that all forms of privacy depend ultimately on mentally processing personal information, this ability can be regarded as the cognitive source of privacy (Ienca and Andorno, 2017 ; Goering et al, 2021 ; Wajnerman Paz, 2021 ). Privacy is partly defined by the control that persons have over the flow of information about them (i.e., being able to determine “when, how, and to what extent information about them is communicated to others,” Westin, 1968 ).…”