Privacy, neuroimagingand public policy

Dr Ian Brown, OII

Overview Definitions of privacy National security Criminal justice Education and

employment Healthcare and insurance Marketing and persuasion In long-term, what

does neuroimaging normatively change, esp. given behavioural and genetic information?

Definitions of privacy

“the right to be let alone — the most comprehensive of rights and the right most valued by civilized men” (Olmstead v US, Brandeis dissenting 1928)

“This Fundamental Right insofar authorizes each individual to determine on the circulation and the use of his own personal data. A limitation of this Right on ‘Informational Self-Determination’ will only be allowed in the case of prevalent public interest.” (German Constitutional Court 1983)

National security

Surveillance: targeted v mass; 1984 Torture: efficiency v inefficiency, slippery slope,

reciprocity/consistency, long-term damage and dignity

Criminal justice Identification of criminal tendencies

Family situation and childhood behaviour Self-fulfilling prophecies

Self-incrimination False confessions and prisoner abuse Polygraphs and truth serums

Evidential value Accuracy and persuasiveness

Responsibility and culpability Potential for and consequences of recidivism

National DNA Database

Education and employment Selection

Based on some measure of g or specific task performance, correlated with response speed?

Personality profiles (patience, determination, creativity, fearlessness)

Predictive quality and discrimination

Performance measurement Professional autonomy v clocking in, communications

surveillance (Halford v UK)

Disciplinary action Ability to take risks and make mistakes essential to

development of personality Can morality develop without ability to do wrong?

(Brownsword & Yeung 2008)

Healthcare and insurance Earlier diagnoses and improved treatment of

mental illness More specific but definite diagnoses of personality

disorders? Incidental Findings

Notification of untreatable disease Compliance

Compulsory treatment Actuarial discrimination already permitted

Marketing and persuasion “Persuasive” product and marketing design

based on understanding of neural bases of consumer preferences

Subliminal advertising Regulation preceded demonstration of efficacy

Broadcasting regulation “Persuasive nature” of audiovisual content is one

justification for eg German system Manchurian candidates

Politics has driven development of opinion polling

What does neuroimaging change? (Potentially) much greater insight into inner life of

individuals – to a qualitatively different degree to existing behavioural and genetic monitoring technologies?

Sector-specific regulation developing through courts, RECs, healthcare purchasers etc.

Very little cross-sectoral regulation has yet emerged – likely for foreseeable future to come under Data Protection Directive and Charter of Fundamental Rights in EU

Abstract appeals to autonomy and dignity have minimal impact on the political process, although greater influence on constitutional courts

References R Anderson, I Brown, T Dowty, P Inglesant, W

Heath & A Sasse (2009) Database State, Joseph Rowntree Reform Trust

I Brown & D Korff (2004) Privacy and law enforcement, Information Commissioner’s Office

R Brownsword & K Yeung, eds. (2008) Regulating Technologies, Hart

House of Lords Constitution Committee (2009) Surveillance: Citizens and the State, HL Paper 18-1

J Illes, ed. (2006) Neuroethics, OUP