by Alberto Rinaldi *
What if we were able to reconstruct images and thoughts from our neural activity? In other words, what if the information contained in the human brain could be detected and scrutinized? Recent developments in neuroscience may offer an answer in this regard. Conversely, medical advancements in this field call for a reassessment of the right to freedom of thought, particularly of the so-called forum internum under Article 9 of the ECHR.
Policing the brain?
Neurotechnologies consist of devices and procedures with multiple applications in medical settings, as they can be used for treating neurological diseases and conditions.[1] By enhancing human cognitive, sensory, and motor capabilities, neurotechnologies make it possible to treat neurological disorders and compensate for various disabilities. However, the same tools that enable data collection from the human brain, the so-called neuro-data, can also be used for non-medical purposes.
Non-invasive techniques such as brain-computer interfaces (BCIs) can already deduce certain thoughts in real-time, including individuals’ intentions.[2] Neuroimaging is deployed in some circumstances to determine one’s fitness to stand trial and the likelihood of recidivism.[3] Brain imaging techniques might contribute to more evidence-based assessment of criminal responsibility.[4] Neurological data could be gathered by the security and law enforcement sectors in society and be converted into criminal evidence, but it can also be misused by authoritarian governments or unregulated private actors.
The potential misappropriation of neurotechnologies (and of neuro-data) in non-clinical settings thus raises some fundamental questions. To offer an example, it is unclear whether in the future individuals will be chastised for their thoughts, shifting the traditional paradigm of punishment.[5] In a larger sense, the access to and influence of the information contained in our brains has a strong ethical and social impact. It poses challenges to the private sphere and the autonomy of the individual; it raises questions about the very essence of human identity and disrupts the traditional conception of freedom of thought in particular.[6]
A forgotten right
Indeed, the mind remains largely terra incognita for the law. To date, few cases exist on the protection of the inner part of the brain, the so-called forum internum. Additionally, freedom of thought was drafted with little, if any consideration, for the vulnerability of the human mind in the face of new technologies.[7] As recently highlighted by the UN Special Rapporteur:
Neurotechnology can already modify or manipulate thoughts inside the brain […] brain-computer interfaces could already be used in real time to deduce certain thoughts […] As technological advances increase the possibility of accurately decoding or inferring one’s inner mind, clear parameters, and protections for forum internum rights need urgent consideration.[8]
Freedom of thought has an absolute nature. Under Article 9 of the European Convention of Human Rights (ECHR), limits can only be imposed on the external manifestations of such thoughts and beliefs. This has been described as the protection of forum internum. [9] In one of its earliest formulation, the European Commission stated: “Article 9 primarily protects the sphere of personal beliefs and religious creeds, i. e. the area which is sometimes called the forum internum”.[10]
As such, freedom of thought has remained confined to issues related to the religious sphere.[11] The meaning of ‘thought’ is unclear and little has been said about it in European human rights law.[12] The position of the Strasbourg institutions here is contradictory. In one of its earliest rulings – F.P. v Germany – the Commission adopted a restrictive approach, underlying how Article 9: “is essentially destined to protect religions or theories of philosophical or ideological universal values”.[13] In Salonen v Finland, however, it referred to “the comprehensiveness of the concept of thought” in accepting the parents’ desire to give to their child a particular name.[14]
Interestingly, the ECtHR has not further elaborated on this concept, limiting itself to reiterate the formula seen in C v United Kingdom with regards to the absolute protection of the internal part of our beliefs, and convictions.[15] To date, it remains unclear what ‘thought’ can actually cover, or even mean.[16]
Because neurotechnologies reach beyond the purely religious sphere and have the potential to screen and detect other aspects of the human brain, a significant gap thus exists with regard to freedom of thought. What is the place of emotions, memories, and neural images?[17] What about mental states potentially predicting our behaviors?[18] Will they be covered by Article 9?
Too high a threshold?
Notwithstanding the absolute protection of forum internum, over the years, the ECtHR seems to have established a threshold to qualify the views protected under Article 9. As recently formulated in İzzettin Doğan (2016):
The Court reiterates that, as guaranteed by Article 9 of the Convention, the right to freedom of thought, conscience and religion denotes only those views that attain a certain level of cogency, seriousness, cohesion and importance.[19]
This quite high bar has potentially a negative impact when it comes to neurotechnologies. If neuro-data are collected from our inner thoughts, but only opinions and views that reach a certain cogency find full protection, there is ample room for abuse. Furthermore, how to determine the importance of thoughts? From what moral standpoint?
In the coming years neurotechnologies will be able to deduce our mental processes and neural activity with increasing precision. As urged by the UN Special Rapporteur, the time has come to revisit the scope of forum internum. The ECtHR thus has a crucial role to play in expanding the application of Article 9. Nothing suggests that ‘thought’ should only pertain to the religious sphere, and with the advent of neuroage, a more holistic approach is needed. The battle to protect the innermost part of our minds has just begun.
* Alberto Rinaldi is a postdoctoral researcher at the Department of Law, Lund University.
[1] For two important references: Op de Beeck and Nakatani, Introduction to Human Neuroimaging (2019); Yuste, Lectures in Neuroscience (2023).
[2] Ienca and Haselager, ‘Hacking the Brain: Brain-Computer Interfacing Technology and the Ethics of Neurosecurity’ (2016) 18 Ethics of Information Technology 117.
[3] Ligthart, ‘Coercive Neuroimaging, Criminal Law, and Privacy: a European Perspective’ (2019) 6 Journal of Law and the Biosciences 289.
[4] Takagi and Nishimoto, ‘High-Resolution Image Reconstruction with Latent Diffusion Models from Human Brain Activity’ (2023) bioRxiv 1.
[5] Selter and Kölbel, ‘Hostile Intent – the Terrorist’s Achilles Heel? Observations on Pre-Crime Surveillance by Means of Thought Recognition’ (2010) 18 European Journal of Crime, Criminal Law and Criminal Justice 237.
[6] For an overview of the basic human rights challenges posed by neurotechnologies see the report by UNESCO, ‘The Risks and Challenges of Neurotechnologies for Human Rights’ (2023), report available at https://unesdoc.unesco.org/ark:/48223/pf0000384185.
[7] As it has been shown, the preparatory works of the European Convention are not particularly illuminating on the meaning of ‘thought’. On this point see specifically Ligthart, ‘Freedom of Thought in Europe: do Advances in ‘Brain-Reading’ Technology Call for Revision?’ (2020) 7 Journal of Law and the Biosciences 1 at 9-15.
[8] Interim Report of the Special Rapporteur on Freedom of Religion or Belief, Ahmed Shaheed: Freedom of Thought, 5 October 2021, A/76/380, at 15 and at 21-22.
[9] On this point see Vermeulen and van Roosmalen, ‘Freedom of Thought, Conscience and Religion’, in van Dijk et al (eds), Theory and Practice of the European Convention of Human Rights. Fifth Edition (2018) at 735. This has also been confirmed in relation to Article 18 (freedom of thought, conscience, and religion) of the ICCPR by the Human Rights Committee: “Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice”. Human Rights Committee, General Comment No. 22, Article 18, 30 June 1993, CCPR/C/21/Rev.1/Add.4 at 3.
[10] C v United Kingdom, no 10358/83, Commission’s report of 15 December 1983, Decisions and Reports 37, at 147.
[11] On this point see M.D. Evans, Religious Liberty and International Law in Europe (1997). Also C. Evans, Freedom of Religion Under the European Convention on Human Rights (2001) and specifically Harris et al, Law of the European Conventions on Human Rights (2018) at 573.
[12] “The absolute, unimpugnable and fundamental nature of the forum internum has been undermined by European institutions through persistent avoidance of principles that permit the forum internum rights to be asserted by applicants”. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (2005) at 202.
[13] F.P. v Germany, no. 19459/92, Commission’s report of 23 March 1993, at 3.
[14] Salonen v Finland, no 27868/95, Commission’s report of 2 July 1997, at 5.
[15] On this point see specifically Bublitz, ‘Freedom of Thought as an International Human Right: Elements of a Theory of a Living Right’, in Blitz and Bublitz (eds), The Law and Ethics of Freedom of Thought (2021) at 58-59.
[16] This is reflected in the very Guide on Article 9: “on the one hand, the scope of [the Article] is very wide, as it protects both religious and non-religious opinions and convictions. On the other hand, not all opinions or convictions necessarily fall within the scope of the provision”. See Guide on Article 9 of the European Convention on Human Rights, 30 April 2022, par. 14
[17] On decoding mental states see Haynes, ‘Brain Reading: Decoding Mental States From Brain Activity In Humans’, in Illes and Sahakian (eds), Oxford Handbook of Neuroethics, Oxford Library of Psychology (2011) at 3. On the screening of memory see Burgess, Gonene-Yacoovi and Volle, ‘Functional Neuroimaging Studies of Prospective Memory: What Have We Learnt so Far?’ (2011) 49 Neuropsychologia 2246. See also Richmond et al (eds), I Know What You’re Thinking: Brain imaging and Mental Privacy (2012).
[18] On inferring political orientations through brain scanning see Kanai et al, ‘Political Orientations Are Correlated with Brain Structure in Young Adults’ (2011) 21 Current Biology 67.
[19] İzzettin Doğan and others v Turkey [GC] Application no. 62649/10, Merits and Just Satisfaction, 26 April 2016, at para 68.
