Habeas Cogitationem: A Writ to Enforce the Right to Freedom of Thought in the Neurotechnological Era

In the recent Girardi v. Emotiv ruling—the first in the world to recognize the right to privacy of brain data collected by a direct-to-consumer neurotechnology device—the Supreme Court of Chile ordered the San Francisco-based company Emotiv to delete ex-senator Guido Girardi’s brain data, which had been collected through Insight, an electroencephalography (EEG) headset that, according to the company’s website, is designed “to navigate a digital world hands-free, regain independence with assistive technology, or delve into mind-controlled applications.” The court also suspended the marketing of the device in Chile until customs and health authorities could evaluate its compliance with national regulations. This case—in which we were involved as amicus brief contributors—is a clear example of why legal professionals must be prepared to work in the coming years on cases involving the use of neurotechnologies.

Imagine that you are a legal professional facing the following scenarios:

• A family files a complaint in your court because their loved one has had their brainwaves read, without their consent, in order to extract a possible confession to a crime—a practice called brain fingerprinting.
• A potential client, who recently had a deep brain stimulation device surgically placed to treat their Parkinson’s disease, comes into your office and tells you that they want to report an attacker who has remotely hacked their device by damaging the device’s batteries.
• An inmate’s lawyer comes to court to inform you that they are preparing a lawsuit against the prison system for forcing their client to undergo brain surgery intended to reduce the risk of their violent behavior — a practice known as moral enhancement.

While these scenarios may not be occurring as you read this, they are not pure science fiction; all are entirely feasible using current neuroscience techniques. While it’s possible to imagine additional scenarios, these three alone seem sufficient to demonstrate the need to urgently develop procedural mechanisms to effectively protect and enforce fundamental rights in situations where abuse is committed through the use of neurotechnologies. For this reason, we have developed the theoretical apparatus for a new habeas writ intended for this purpose; we call it habeas cogitationem.

Freedom of Thought vis-a-vis neurotechnology

Recent developments in neurotechnology are driving significant advances that are increasingly moving beyond clinical settings and heading toward applications for private consumption. Devices that can interpret and/or manipulate brain activity are beginning to be used in homes (for example, for meditation) and businesses (mainly to monitor employees’ productivity). Without prejudice to their potential benefits, the use of these brain-computer interfaces (BCIs) raises important concerns related to data privacy, user autonomy, and mental integrity, among other aspects.

A technique that perfectly exemplifies these advances is so-called brain decoding, which uses sophisticated algorithms to infer language, images, dreams, or intentions from data generated by neural activity. This allows, for instance, for hands-free operation of electronic devices. However, brain data are extremely sensitive, and privacy issues regarding this data raise several concerns among ethicists and lawyers.

Among the many remarkable milestones in the indigenous American people’s historical struggle for their rights and liberties is the native Osage Nation’s efforts in the 1920s to retain ownership of their oil wells, as recently depicted in Martin Scorsese’s film “Killers of the Flower Moon.” While oil is still valuable today, it is data that is commonly regarded as “the oil of our century.” Just as the Osage’s (or any others’) crude oil becomes more profitable when refined, very valuable information about our mental life can be obtained from processing and analyzing our raw brain data. Importantly, we could be recognized from our anonymized brain imaging data. Also, it is in principle possible to obtain information about a user’s unconscious mental activity from their brain data, without them even realizing it. Even our political ideologies could be revealed from our brain scans. Moreover, unlike genetic and other sensitive data, brain data can be collected or manipulated in real time.

Imagine, for example, a bus driver whose fatigue parameters are recorded via an EEG headset. Some may argue that it is justified to reduce the driver’s privacy for the sake of road safety, and access to such data may one day be a condition of employment. In contrast, no common interest would justify taking advantage of brain data thus collected to also learn about the driver’s political orientation, religious beliefs, or value systems. It is for cases like this that the advancement of neurotechnology prompts us to review and reconceptualize the right to freedom of thought.

Cognitive liberty as an expansion of Freedom of Thought

If we look at some of the most important international documents on human rights, we will realize that freedom of thought is closely linked to freedom of expression (Article 13 of the American Convention on Human Rights) or freedom of conscience and religion (Article 18 of the Universal Declaration of Human Rights). But expression, conscience and religion are external, behavioral outputs of thought. Neurotechnological advances must therefore be accompanied by measures to safeguard thought proper. This would include the right not to self-incriminate and the protection against abusive brain interventions—as in the three examples that we described at the beginning of this piece—as well as keeping honor and ideological freedom intact in cases involving monitoring and intervention in thought processes.

This reconceptualization of freedom of thought to encompass the protection of thought itself is called cognitive liberty, and it has been argued that it is “the substrate of all other freedoms” as well as a pre-requisite of so-called neurorights—rights that would presumably protect the brain and mind in the spheres of autonomy, privacy, integrity, identity, and non-discrimination. Neurorights, aimed at reforming the framework of fundamental rights in light of neurotechnologies, have already been incorporated in a constitutional amendment in Chile and an OAS declaration, and are being introduced in several other national, regional, and global regulatory systems. They could take the form of new rights, as originally advocated by the Neurorights Foundation, or rather reconceptualized existing rights, as we ourselves advocate.

Cognitive liberty is an example of reconceptualizing existing rights, as it updates the right to freedom of thought. However, is reconceptualization alone enough to protect our brain and mind? What should we do if our cognitive liberty is threatened in situations where we cannot wait for a criminal trial? Is the current procedural law framework prepared to provide adequate urgent remedies and protection mechanisms in these cases? Our view is that it is not, and this is why we have developed the concept of habeas cogitationem.

Habeas cogitationem: an effective protection mechanism for Freedom of Thought

For centuries, habeas corpus (“you shall have the body”) has been an effective urgent mechanism to guarantee the freedom of the individual from illegal or arbitrary detention, torture, and other similar abuses against bodily self-determination. In the 20th century, various countries also incorporated habeas data (“you shall have the data”) to guarantee users’ control over their data (informational self-determination) against abuses in the infosphere. Both habeas writs share the trait of being very fast processes with very few to no legal formalities, and although they were originally conceived to protect citizens from abuses committed by the state, they are also applicable to situations of abuse committed by private agents. This dual applicability is clearly explained in the Oxford Dictionary of Law’s definition of habeas corpus: “A prerogative writ used to challenge the validity of a person’s detention, either in official custody (e.g. when held pending deportation or extradition) or in private hands.”

To date, however, there is no urgent mechanism worldwide that specifically protects mental self-determination, the type of self-determination (after bodily and informational) that completes all the dimensions of the person. Habeas cogitationem (“you shall have the thought”) fills this gap by enforcing the right to freedom of thought itself, i.e., our cognitive liberty.

The core aspects of this writ—which can be found in more detail in a paper that we published in the journal Neuroethics—are summarized in the table below:

The habeas cogitationem writ

(1) What is the concept? We define habeas cogitationem as “a prerogative writ used to challenge the validity of a neurotechnological interference in a person’s thought process, either in official or private hands.”

(2) What kind of right is habeas cogitationem? It is a constitutional procedural right (i.e., a writ) formulated in a negative sense, since it compels to no harm on a citizen’s internal thought mechanisms. Just as the two precedent habeas writs (habeas corpus and habeas data), it is conceived as a very fast process with minimum possible formalities.

(3) What does this writ protect? Habeas cogitationem safeguards mental self-determination by primarily enforcing cognitive liberty—that is, the right to freedom of thought itself. To the extent that cognitive liberty is considered a prerequisite for other neurorights, habeas cogitationem would subsidiarily enforce, too, any of these rights that are formulated in a negative sense (for instance: mental privacy, mental integrity, and psychological continuity).

(4) What interferences in thinking should be subject to investigation? Suggestion and other forms of psychological influence on the thinking of others are, in most cases, part of the normal interpersonal relationships in any society, so habeas cogitationem should rather pursue any form of aggression that directly interferes with thinking using neurotechnologies. Furthermore, any habeas writ should be reserved for urgent flagrant cases of violation of fundamental rights, so the kind of aggressions subject to investigation of habeas cogitationem must be serious enough not to allow waiting for an ordinary criminal trial; in this sense, the potential irreversibility of the harm caused is a key criterion.

(5) Who are the potential perpetrators to investigate? Even though habeas corpus and habeas data were originally conceived as protection mechanisms against state abuses, they have also been applied—especially the latter—in cases of abuse by private agents and corporations. Habeas cogitationem inherits this dual application. In our own words: “The Hobbesian Leviathan is no longer the State only; novel forms of neurotechnological interference in people’s mental lives […] could be developed and applied by new, private leviathans with power comparable […] to that of many states.” Accordingly, habeas cogitationem could be applied on equal terms to both public and private perpetrators, included but not limited to officials, government members, police and army bodies, attorneys and judges, and corporations.

Is this mechanism necessary?

A potential objection arises at this point: Why not choose a generic protection mechanism instead? For example, in some Spanish-speaking countries, there is a procedural mechanism for cases of erosion of fundamental rights, called recurso de amparo (“appeal of protection”). Amparo is a writ applicable to a wide variety of situations, so why not resort to it so that no new procedural tool such as habeas cogitationem be necessary?

Our answer is closely related to the issue of urgency and potential irreversibility of the harm inflicted (see point 4 in the table above). Take the case with which we began this article: Girardi filed a constitutional amparo appeal against Emotiv in April 2022, but the Chilean Supreme Court’s ruling was not issued until August 2023. Any eventual serious, potentially irreversible neurotechnological aggression (for example, involving damage to brain circuitry) that may occur should not be subject to so long a process as that which led to the Girardi v. Emotiv ruling, but should rather be resolved by a specific, rapid mechanism such as habeas cogitationem. In other words, “specificity is inherent to a more suitable protection.”

Toward the future: Mexico and Argentina kick off

Habeas cogitationem comes to complete a triad of habeas writs in which all possible spheres of freedom of a person—physical, mental, and behavioral—are finally covered by procedural remedies for the protection of fundamental rights.

Some countries are beginning to adopt initiatives that come close to including habeas cogitationem in their legal systems. Mexico has been the pioneer; in its recent bill of General Law of Neurorights and Neurotechnologies, harm to neuronal integrity is introduced as a new case explicitly susceptible to application of its amparo remedy (see pages 69‒76 and 153 of the bill). In this way, Mexico incorporates the spirit of habeas cogitationem in the form of a legal principle, especially regarding the criterion of specificity that we have referred to above. In addition to this important novelty, there are various new criminal law articles that are in line with this reform of procedural protection (see pages 55‒68 and 153‒154).

In Argentina, at the request of some members of the Chamber of Deputies, experts are currently preparing a restructuring of the country’s legal framework to incorporate the habeas cogitationem writ. Here, too, legislators should work to expand the catalogue of crimes in their penal code by incorporating criminal offences to cognitive liberty, consistent with the new procedural tool.

As the cognitive liberty proponent Wrye Sententia eloquently stated: “The individual, not corporate or government interests, should have sole jurisdiction over the control and/or modulation of [their] brain states and mental processes.” Convinced as we are of this, habeas cogitationem is aimed to shield this individual jurisdiction by becoming the great protection mechanism against all kinds of neurotechnological aggression to human thought.