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Cognitive liberty. A first step towards a human neuro-rights declaration

Cognitive liberty. A first step towards a human neurorights declaration

by Paolo Sommaggio, Marco Mazzocca, Alessio Gerola, Fulvio Ferro

ABSTRACT: This paper discusses the emerging debate concerning the concept of Cogni-
tive Liberty and its connection with human rights. Therefore, considering how recent
developments of neurosciences are granting us an increasing ability to monitor and
influence mental processes, this article aims to provide a clear definition of Cognitive
Liberty understood as a necessary condition to all other freedoms that cannot be re-
duced to existing rights. In this regard, after presenting the most important positions
on the issue, we introduce our point of view, according to which Cognitive Liberty al-
lows us to lay the groundwork for building new neurorelated Human Rights.

KEYWORDS: Cognitive liberty; cognitive enhancement; neuroscience; neurolaw; human

SUMMARY: 1. Introduction 2. The neurotechnologies 3. Cognitive Liberty: in search of a definition 4. Cogni-
tive Liberty: negative formulation 5. Cognitive Liberty: positive formulation 6. Cognitive Liberty and Human
Rights 7. The debate: the conception of Bublitz 8. The debate: the conception of Ienca and Andorno 9.
Conclusion 10. References.

1. Introduction

n the novel “The Emerald city of Oz” L. Frank Baum imagines the existence of particular pills
taken by professor Wogglebug’s students to acquire notions of Algebra, Geography and Latin,
in order to avoid regular school attendance and allow them to have more free time for sports
and recreational activities.1

At the present time, this
is no longer just a fantasy fiction. Neuroscientists, indeed, claim to take the
place of the wellknown fantasy character through the use of neuroscience and neurotechnologies.

This is because, recent studies on the relations between the structure of the brain (and the nervous
system) and human knowledge led to develop techniques for monitoring (and influencing) brain ac-
tivity, allowing them to affect reasoning, to alter emotions or memory, and to enhance cognition.

However, one should note that these techniques seem to have a sort of double face. On the one side,
they increase the risk for the security and the privacy of what is in our brain; on the other side, they
represent an amazing opportunity to augment our brain potential.
Paolo Sommaggio: Associate Professor, Faculty of Law, University of Trento, Trento, Italy. Email: pao-
[email protected]
; Marco Mazzocca: Ph.D. Candidate, Department of Public, International, and Communi-
ty Law, University of Padua, Padua, Italy. Email:
[email protected]; Alessio Gerola: Postgraduate
Student, Department of Philosophy, University of Twente, Enschede, Netherlands. Email:

[email protected]
; Fulvio Ferro: Undergraduate Student, Faculty of Law, University of Trento, Tren-
to, Italy. Email:
[email protected]. The article was subject to a double blind peer review process.
Cf. L. FRANK BAUM, The Emerald City of Oz, Chicago, 1910.

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28 Paolo Sommaggio, Marco Mazzo

This is not an issue to be addressed in terms of “mind ownership”, since such terminology represents
an incorrect use of a legal category. Rather, it seems to be necessary to analyse the concept of Cogni-
tive Liberty (CL), as coined by American civil rights activists.

This is a concept that, according to Richard Boire and Wrye Sententia’s opinions, is something similar
to a wall to protect the individual from the claims of any other person2. Indeed, as they highlighted in
many of their essays, Cognitive Liberty is the right to control one’s own mind: the basic brick of per-
sonal freedom. In the last decade, this concept became a slogan in support of various civil rights
struggles: among the others, the claims against nonvoluntary interference and forced psychiatry or
for decriminalisation of psychoactive substances.

Nowadays, Cognitive Liberty is a complex and central concept in the relationship between neuro
technologies and the internal sphere of every person. The problem, however, is the lack of a theoret-
ical framework of negative intervention in other minds and, at the same time, the lack of positive
selfdetermined alterations on/to one’s own mind.

This is the reason why, after providing a general definition of Cognitive Liberty (as well as its positive
and negative aspects) we will introduce the problem of the relationship between CL and Human
rights: the former concept, in fact, has been considered since the beginning as a potential human
right. Indeed, according to Boire, «As we frantically race into the third millennium, with micropro-
cessors becoming faster, cheaper, and smaller, with surveillance cameras proliferating in public spac-
es, with the human genome program about to issue its first ‘working draft’ of the human DNA se-
quence, and with an outofcontrol Frankensteinian machine named the War on Drugs, all awhirl in
the ocean of modern day culture, it is imperative that we, as a society, expressly acknowledge the
fundamental human right to cognitive liberty and immediately begin to define its contours»3.

Therefore, the aim of this paper is to analyse if CL may be considered as a new human right or as the
preliminary condition to think about all human rights. Consequently, we will firstly review the main
positions in the current debate about this issue and, then we will introduce our point of view, accord-
ing to which CL plays a pivotal role allowing us to think about all new neurorelated human rights. In-
deed, only thinking about the CL features we are able to build a serious framework of the other neu-
rorights able to lead us to a new Declaration of Human NeuroRights with which, we hope, we can
reach an agreement with every author involved in the study of Cognitive Liberty. In this paper we
present some steps useful in building a sort of a stairway to reach a Declaration of Human Neuro

2. The neurotechnologies

The advancement of neurotechnologies raises a number of philosophical, ethical and legal conun-
drums that are connected to issues such as personal identity, privacy, social justice and autonomy. In

Cf. R. G. BOIRE, Cognitive Liberty Part 1, in Journal of Cognitive Liberties, 1/1, 2000, pp 713.; W. SENTENTIA,
Neuroethical Considerations: Cognitive Liberty and Converging Technologies for Improving Human Cognition, in
Annals of the New York Academy of Sciences, 1013/1, 2004, pp. 221228.

R. G. BOIRE, Cognitive Liberty Part 1, cit., p. 7.

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this section we provide a brief overview of existing neurotechnologies and of the kind of questions
that their development and application pose.

a) Brain Imaging. The first set of neurotechnologies we consider are brain imaging techniques. The
main techniques employed for the purpose of brain monitoring and imaging include electroenceph-
alography (EEG) and functional magnetic resonance (fMRI). They provide structural and functional
information about the brain and its neural activity, that is used for diagnostic and research purpos-
es. Through fMRI, for example, neuroscientists are able to study the ways in which neurons fire up
and thus to correlate brain activity with mental activity, localizing the areas of the brain that re-
spond to certain stimuli, like pain or language recognition. This information provides a clearer un-
derstanding of the way in which the brain works and how it supports our thoughts. However, the
correlation between psychological traits and their neural basis is still not perfectly understood, and
fMRI can only provide indirect access to neural activity through the measurement of changing blood
flow associated with it. The accuracy with which these are matched is, therefore, still considerably
limited, and although further developments may pose severe challenges in the future that we ought
to be ready to address, no considerable threat to privacy seems to be in place at the current state of
the art4. At any rate, the impact of the social influence of neuroscientific information should not be
underestimated. Excessive hype in the results of brain imaging techniques can thus lead to a blind
trust in its predictive power. The appearance of objectivity and authority that brain images carry
may lead people to misinterpret them as more predictive than they really are. The simple presence
of neural information, real or fake, is enough to make a certain piece of information appears as
more authoritative and credible5. For example, the widespread belief that a socially reprehensible
trait, say paedophilia, is associated with a precise neural correlate, might lead to the stigmatization
and discrimination against individuals that are discovered to possess such neural characteristics,
even in the absence of associated psychological evidence. An area in which neuroscientific studies
based on brain imaging are applied to address real world cases is, for example, neuromarketing. Its
goal is to collect neural information concerning decisionmaking processes by measuring the cus-
tomers’ response to an advertisement, in order to test its effectiveness. Neuromarketing could thus
lead to the infringement of the decisional autonomy of the individual, if it enabled companies to hi-
jack customers’ choices that bypass their level of awareness. With current technology and level of
understanding, however, it is not possible to manipulate customers’ behaviour in such a way that
the target does not realize the attempt to nudge him or her6. Nonetheless, there might be more ef-
fective ways to alter customers’ behaviour, as we will see shortly.

Brain Stimulation. The next set of technologies comprises neurostimulation ones: they offer treat-
ments based on electrical and magnetic stimulation of the brain through medical devices fixed on

Cf. M.J. FARAH et al., Brain Imaging and Brain Privacy: A Realistic Concern?, in Journal of Cognitive Neurosci-
ence, 21/1, 2010, pp. 119127.

Cf. D. S. WEISBERG et al., The Seductive Allure of Neuroscience Explanations, in Journal of Cognitive Neurosci-
ence, 20/3, 2008, pp. 470477.

Cf. C. E. FISHER, L. CHIN and R. KLITZMAN, Defining Neuromarketing: Practices and Professional Challenges, in
Harvard Review of Psychiatry, 18/4, 2010, pp. 230237.

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the head or implanted into the brain. Transcranial Magnetic Stimulation (TMS) and Deep Brain
Stimulation (DBS) currently have widespread applications for the mitigation of the symptoms of
neurological and psychiatric disorders like Parkinson’s disease, epilepsy and depression7. Among the
various issues that these technologies raise, we are particularly interested in the ways brain stimula-
tion alters the patient’s personality and identity. Although evidence about the psychological effects
of these kinds of treatments is conflicting, numerous studies report various degrees and types of al-
terations, depending on the mode, degree and area of stimulation8. Mood and personality changes
due to DPS for example comprise states of excitement and euphoria, impulsivity and a tendency to
obsessive disorders.9 These changes can be so radical as to pose a challenge to individuals to adapt
themselves to a new concept of themselves. It is hard, however, to determine whether such chang-
es are caused by the degree and area of stimulation, or by the attempt of psychological adaptation
to a new health status. Additionally, given the numerous different accounts of personal identity that
the literature offers, it is hard to tell how much an individual’s personality changed, and thus, to give
an indication of the degree of change of identity which the person underwent.

Brain Alterations. A third set of neurotechnologies comprises psychoactive drugs, which are known
to cause changes of personality too. Psychopharmacological agents such as methylphenidate (Ri-
talin), modafinil (Provigil), donepezil (Aricept), fluoxetine (Prozac) and amphetamines (Adderall) are
regularly employed to treat a wide array of conditions, like Attention Deficit Disorder (ADD), narco-
lepsy, Alzheimer’s disease, dementia and depression. Anyway, as side effects they may also enhance
mood, concentration, wakefulness, assertiveness and sociability10. Other substances have been
shown to cause the temporary alterations of human psychological traits. Oxytocin, for example, is
involved in a number of cases of pro social behaviour in mammals. The administration of oxytocin
increases social trust and risktaking11, an aspect that may be used to treat patients that suffer from
social phobia or autism12, but might also be used to cheat or deceive somebody by decreasing their
level of suspicion. Additionally, it may also increases aggression, since oxytocin is involved in the ag-

Cf. F. JOTTERAND AND J. GIORDANO, Transcranial magnetic stimulation, deep brain stimulation and personal identi-
ty: ethical questions, and neuroethical approaches for medical practice, in International Review of Psychiatry,
23/5, 2008, pp. 476485.

Cf. E. BELL ET AL., A Review of Social and Relational Aspects of Deep Brain Stimulation in Parkinson’s Disease In-
formed by Healthcare Provider Experiences, in Parkinson’s Disease, 2011, (last visited 12/09/2017).

Cf. F. JOTTERAND and J. GIORDANO, Transcranial magnetic stimulation, deep brain stimulation and personal iden-
tity: ethical questions, and neuroethical approaches for medical practice, cit.; E. BELL et al., A Review of Social
and Relational Aspects of Deep Brain Stimulation in Parkinson’s Disease Informed by Healthcare Provider Expe-
riences, cit.

Cf. F. JOTTERAND and J. GIORDANO, Transcranial magnetic stimulation, deep brain stimulation and personal iden-
tity: ethical questions, and neuroethical approaches for medical practice, cit.

Cf. M. KOSFELD et al., Oxytocin increases trust in humans, in Nature, 435/7042, 2005, pp. 673676.
Cf. T. BAUMGARTNER et al., Oxytocin Shapes the Neural Circuitry of Trust and Trust Adaptation in Humans, in
Neuron, 58/4, 2008, pp. 639650.

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gressive behaviour that mammals display when a mother defends her litter from a threat.13 Yet oth-
er psychopharmacological drugs are studied for their potential to affect memory, which may offer
treatments for people suffering from Mild Cognitive Impairment (MCI) and Post Traumatic Stress
Disorder (PTSD). Both memory formation and consolidation, and the emotional strength of memo-
ries can be altered in order to enhance or inhibit memory recollection. MCI can cause memory defi-
cits that could be remedied by strengthening the process of memory formation and consolidation.14
PTSD symptoms, on the other hand, can be alleviated by reducing the intensity of the emotions at-
tached to traumatic memories. At the current state of the art, these techniques cannot be used to
selectively modify people’s memories 15. In spite of this, future developments of memory modifica-
tion technologies raise issues concerning the continuity of personal identity due to the alteration of
memories that play a role in defining who we are. All these effects on one’s personality, due to
technological or pharmacological intervention in the brain, makes us question the authenticity of
the resulting behaviour, which again connects to the issue of identity change, as well as to personal
autonomy. How radical must a change be in order to count as a substantial alteration of personal
identity, and how much of it is due to the intervention? How “free” are the decisions of the person
after the treatment, and how does the selfperception of autonomy impact one’s perception of self
worth? These questions will come back again in later parts.

Cognitive Enhancement. The last issue that will be taken in consideration here is the so called cogni-
tive enhancement. Both neurostimulation technologies and psychoactive drugs, in fact, can be used
to augment human cognitive capacities such as attention, focus and memory (but also mood, per-
sonality traits and behaviour)16. Although the majority of techniques and products are tested specif-
ically for the treatment of specific disorders, nootropic drugs (also called smart drugs) in particular
are regularly used offlabel to obtain a boost during mental efforts, especially by students. Even
though the degree of the possible enhancement is at the present time limited, the issues that this
use of neurotechnologies raises are broad and challenging. Besides changes in personality and
identity as outlined above, cognitive enhancement could impact selfesteem, since it puts into ques-
tion the connection between our efforts and achievements17. Differences of accessibility due to, for
example, prohibitive costs for the poorer parts of society, could cause the exacerbation of the gap

Cf. C. N. DEWALL, et al., When the Love Hormone Leads to Violence: Oxytocin Increases Intimate Partner Vio-
lence Inclinations Among High Trait Aggressive People, in Social Psychological and Personality Science, 5/6,
2014, pp. 691697.

Cf. G. LYNCH, Memory enhancement: the search for mechanismbased drugs, in Nature Neuroscience, 5/11,
2002, pp. 10351038.

Cf. S. M. LIAO and A. SANDBERG, The Normativity of Memory Modification, in Neuroethics, 1/2, 2008, pp. 85

Cf. F. JOTTERAND and J. GIORDANO, Transcranial magnetic stimulation, deep brain stimulation and personal
identity: ethical questions, and neuroethical approaches for medical practice, cit.

Cf. P. BREY, Human Enhancement and Personal Identity, in J. K. B. O. FRIIS, E. SELINGER and S. RIIS (ed.), New
Waves in Philosophy of Technology, Basingstoke, 2009, pp. 169185.

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between social classes18. The widespread use of cognitive enhancers might redefine what is consid-
ered “normal”, impacting personal and social identities on issues related to wellbeing and thus lead
to an increased medicalisation of traits once considered normal19. It may also cause direct and indi-
rect coercion and social pressure on people who refuse to use them and who might face marginali-
zation and penalization in competitive settings or in the workplace20. Lastly, their availability on the
market might foster the commodification of certain psychological traits considered desirable, which
would no longer be seen as a symbol of personal value but rather of status21.

Therefore, to sum up, the neuroscientific technologies promise to:

a) Be able to “read” the mind of people simply through brain scans.

b) Be able to change mood and personality

c) Be able to induce aggression or other behaviour modification

d) Be able to alter memory formation and consolidation

e) Be able to augment cognitive ability (or capacity)

These are the reasons why the field of neuroethical needs is bringing about the necessity of an ever
increasing consideration of social and ethical implications of neurotechnological discoveries22.

3. Cognitive Liberty: in search of a Definition

It is not simple to give a clear and exhaustive definition of Cognitive Liberty. Of course, it is a relative-
ly new term, since it was only in 2000 that W. Sententia and R. G. Boire introduced the word and the
concept of Cognitive Liberty in order to emphasise the role and resilience of individual thought in the
free usage of technologies at our disposal.

This is a term designed, on the one hand, to expand the traditional notion of “liberty of thought” and,
on the other hand, to push legal systems of democratic societies to integrate such a right into their

In this context, it is important to highlight that the term ‘cognitive’ denotes the process an individual
uses to organize the information he receives, since the mind collects and selects information accord-
ing to perception, attention, comprehension and memory to guide the behaviour24.

Cf. D. WOLFSLEHNER, Ethical Assessment of Research and Innovation: A Comparative Analysis of Practices and
Institutions in the EU and selected other countries, in SARTORI project Annex 2.c.1, 2015,
(last visited 12/09/2017).
Cf. P. BREY, Human Enhancement and Personal Identity, cit.
Cf. D. WOLFSLEHNER, Ethical Assessment of Research and Innovation: A Comparative Analysis of Practices and
Institutions in the EU and selected other countries, cit.

Cf. P. BREY, Human Enhancement and Personal Identity, cit.
Cf. W. SENTENTIA, Neuroethical Considerations: Cognitive Liberty and Converging Technologies for Improving
Human Cognition, cit., p. 222.

Cf. W. SENTENTIA, Freedom by design: Transhumanist values and cognitive liberty, in M. MORE and N. VITA
MORE (ed.), The Transhumanist Reader: Classical and Contemporary Essays on the Science, Technology and Phi-
losophy of the Human future. Chichester, 2013, pp. 356357.

Cf. N. BOSTROM and R. ROACHE, Smart Policy: Cognitive Enhancement in the Public Interest, in Contemporary
Readings in Law and Social Justice, 2/1, 2010, pp. 6884.

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Therefore, Cognitive Liberty is a very complex concept due to its multidimensional features.

Bublitz assumes that it may be considered as a principle that guarantees «the right to alter one’s
mental states with the help of neurotools as well as to refuse to do so» 25. Nevertheless, it is also de-
fined as the right of each individual to think autonomously and independently, to use the complete
set of their mental abilities and take part in several ways of thought. This latter definition, indeed,
expresses three conceptual points of interest:

Privacy. The content of our thoughts must remain private until one decides to share them.
Therefore, according to Boire and Sententia, we can interpret the cognitive liberty with special
focus on the protection of individual freedom and selfdetermination from the State and other
subjects, but particularly from the State or commercial entities: a sort of protection from the
coercive and nonconsensual use of neuro technologies
Autonomy. Every human being must be able to think independently and use the full spectrum of
their mental faculties26. In this regard, Cognitive Liberty is something like a freedom to control
one’s own consciousness and electrochemical thought processes this is because it is the neces-
sary ontological substrate for just about every other freedom. Thus, now it is clear why Wrye
Sententia presented cognitive liberty as a conceptual update of freedom of thought that takes
«into account the power we now have, and increasingly will have to monitor and manipulate
cognitive function»27

Choice. The capabilities of the human mind should not be limited. Until one person directly
damages others, governments should not prohibit cognitive enhancement or the realization of
any other mental state.

Therefore, since Cognitive Liberty ensures the possibility to control our own consciousness it should
allow us to avoid an attack from an economic corporation or from a coercive political legislation, or
even social orders to achieve a communal cognitive standard28.

Moreover, following the thesis of Bublitz, we think CL is not just a political claim, but something more
similar to a precondition of every legal concept related to a person, i.e. «the implicit assumption of
any legal order based on individual selfdetermination and responsibility»29.
The importance of this
concept may be unearthed from the consideration that it is integral to the foundation of every legal
system. This is a crucial theme because selfdetermination regarding one’s own cognition is essential
for free will and for every kind of free action.

J.C. BUBLITZ, My Mind is Mine?! Cognitive Liberty as a Legal Concept, in E. HILDT and A. FRANCKE (ed.), Cognitive
Enhancement, New York, 2013, pp 233264, p. 234.

Cf. W. SENTENTIA, Neuroethical Considerations: Cognitive Liberty and Converging Technologies for Improving
Human Cognition, cit., p. 223.

W. SENTENTIA, Cognitive Enhancement and Cognitive Liberty: comments to the president’s council on bioethics,
in H. F. DIDSBURY (ed.), 21st Century Opportunities and Challenges: An Age of Destruction Or an Age of transfor-
mation, Washin
gton, 2003, pp 233245, p. 234.
Cf. J.C. BUBLITZ, Cognitive Liberty or the International Human Right to Freedom of Thought, in J. CLAUSEN and N.
LEVY (ed.) Springer Handbook of Neuroethics, Dordrech, 2015, pp. 13091333, p. 1313; W.
SENTENTIA, Freedom by
design: Transhumanist values and cognitive liberty, cit., p. 358.

J.C. BUBLITZ, My Mind is Mine?! Cognitive Liberty as a Legal Concept, cit., p. 243.

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4. Cognitive Liberty: negative formulation

Conducts which aim to provoke damage (intense suffering or physical disabilities) and mental manip-
ulations (behavioural alterations or subliminal conditioning of choices and preferences) are often not
sufficiently prosecuted by national and international authorities. Thus, it is necessary to find a con-
ceptual framework that brings together all these conducts, in order to provide a stronger protection
from them. We think this concept may be the “negative” formulation of Cognitive Liberty: a defen-
sive concept against “mental” abuses from third parties like police, medical agencies, commercial en-
tities, or, indeed anyone, but the owner’s mind.

Boire’s paper Neurocops: The Politics of Prohibition and the Future of Enforcing Social Policy from In-
side the Body highlights the forced use of drugs and psychiatric treatment on prisoners without a
conscious and informed consent30.

On a regulatory level, in addition to physical integrity CL is also taken in consideration, even though
such an issue is only marginally considered in psychopharmacological treatments and in modern neu-
rosciences. As a matter of fact, there are no debates revolving around the correlation between indi-
vidual thought and cerebral neurochemistry. To avoid the erosion of liberty from the inside it is nec-
essary to acknowledge the integrity of the neurochemical processes submitted to the personality of
an individual. The essential features to make these interventions may require the fulfilment of two

that a member of the healthcare staff trained in such subject must fully inform the individual
about treatment alternatives, about risks and benefits deriving from this therapy or about the
possibility of abstention from the cure;

the individual must also be able to decide freely and voluntarily if he intends to undergo the

As a premise of this decision, the subject must have the power of free choice from undue incentives
or any other situation regarding deception, enforceability or constriction, fraud or any other form of
coercion or humiliation. This coercion, even if used to compassionate ends, like the imposition of
care, is still considered coercion. The only exception to the requirement of informed consent, besides
the emergence of possible harm to himself or others, is a statement of mental infirmity, even though
a clear definition of this condition on a medical or legal level has yet to be developed.

In the case Sell vs United States, other limits to the use of neurotechniques are fixed.

These limits can be articulated in four points: 1) there must be a state public interest (such as, in the
present case, to subject a potentially hazardous subject to judgment); 2) medicines administered
must at the same time bring the subject to his senses and not cause unwanted effects; 3) the ac-
cused may not be subjected to alternative healthcare that may yield the same results; 4) the drug
should be administered in the best medical interests based on the subject’s health condition 31.

Cf. R. G. BOIRE, Neurocops: The Politics of Prohibition and the Future of Enforcing Social Policy from Inside the
Body, in Journal of Law and Health, 19/2, 2004, pp. 234258.

Cf. A. U. ETHERIDGE and J. R. CHAMBERLAIN, Application of Sell vs United States, in Journal of the American Acad-
emy of Psychiatry and the Law, 34/2, 2006, pp. 248250.

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As a matter of fact, we believe that the danger of a forced, or of a too aggressive use of neuro
technologies, can result not only in a new conception of punishment, but might have consequences
in those clefts of the legal orders where will is an element of secondary importance.

In many social orders, as is well known, public authorities can put forward medical interventions
completely regardless of the acceptance of those who undergo them; for example, involuntary
healthcare treatments. We believe that, over the next few years, this blind spot could represent a
picklock to test new forms of “normalisation” using neurotechniques32.

In 2012, Hank Greely tried to open the debate on the use of involuntary treatments precisely for the
modification/elimination of antisocial behaviour, as well as for the treatment of diseases and of psy-
chic distress33. This scholar is one of those who consider it an immediate necessity to develop the ba-
sis of a direct intervention in the neurodeviant brain, be it in criminals or simply people in psychic

He asserts the daring thesis that neurosciences will provide the ability to modify undesired behav-
iour, by changing the neurological basis of agent individuals. This reasoning is very simple: if we agree
that we are willing to intervene directly on the brain of a subject in case of severe disease or disa-
blement, there is no reason to disagree on the treatment of the causes, also ‘related to the brain’, of
socially undesired behaviour.

Greely proposes safety and effectiveness as standards to evaluate this kind of treatment. He asserts
that the traditional forms of direct brain intervention (ad example lobotomy) are unduly simplistic
solutions for a very complex problem, since they are neither safe nor effective34.

Therefore, it is necessary to test new forms of intervention, safe and effective, in order to eradicate
socially unaccepted behaviour through behaviour control, provided that the interventions are safe,
effective and not improper35.

For the purpose of suggesting an experimentation in this direction, Greely examines three types of
situations: the fullyvoluntary possibility; the semivoluntary choice between direct intervention and
an unappealing alternative (e.g. jail); and a third completely forced option.

Sure, at least in the first two cases the problem of the true character of a voluntary act could emerge
since the decision could come from the individual’s family or environment. However, Greely’s reply
consists of introducing an «extensive process to ensure that the offender had thought long and hard
about it, was competent, and was not acting in hope of early release» 36.

Secondly, according to Greely, it is necessary to consider the nature of the behaviour that one seeks
to modify. Let us think about a change of one’s shyness or aggressiveness or of one’s religiousness, or
to those who, for various reasons, want to become “someone else”.

Cf. G. MEYNEN, A neurolaw perspective on psychiatric assessments of criminal responsibility: Decisionmaking,
mental disorder, and the brain, in International Journal of Law and Psychiatry, 36/2, 2013, pp. 9399.

Cf. H. T. GREELY, Direct Brain Interventions to “Treat” Disfavored Human Behaviors: Ethical and Social Issues, in
Clinical Pharmacology & Therapeutics, 91/2, 2012, pp. 163165.

Cf. H. T. GREELY, Neuroscience and criminal justice: not responsibility but treatment, in University of Kansas
Law Review, 56/5, 2008, pp. 11031138.

Cf. H. T. GREELY, Direct Brain Interventions to “Treat” Disfavored Human Behaviors: Ethical and Social Issues,
cit., p. 163.

Ivi., p. 164.

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As for the possible objection on the harm to human dignity caused by these interventions, Greely re-
plies: «but does a social consensus that a treatment offends human dignity justify forbidding compe-
tent adults from doing what they want to themselves, even if such a consensus could reliably be

In respect to the semivoluntary choice, according to Greely it is necessary to consider the types of
alternatives proposed to the deviant individual. A court cannot offer the alternative between going
to jail or voting for a certain party, and neither between jail and torture. Therefore, it is necessary to
evaluate the appropriateness of the intervention, that is its character of interest in regard to the in-
dividual’s behaviour. Obviously, the alternative between jail and a safe and effective direct interven-
tion is certainly tempting and, from the author’s point of view, represents an appropriate proposal.

As to completely involuntary direct treatments, Greely wonders for which reason they should not be
proposed without alternatives (that is, imposed), if they comply with the safeeffectivenot improper

If we can serenely send someone to jail, unsuccessfully attempting to modify their behaviour, there is
no reason to fear the scandal caused by a certainly more effective modification concerning the brain.

The problem, we think, involves individual freedom, that is, the “resistibility” of traditional means
that leave residual autonomy to the subject. That is, that autonomy which the new means of direct
intervention would not leave.

In this regard, Greely also asserts the need to identify a space of unattainable “cognitive liberty”; a
sort of privacy level beyond which one should not go38. But, even given this sort of unattainability, it
is difficult to assert that direct brain intervention could not become a commonly used practice to
modify behaviour that is socially unfavourable or not accepted by the community, or vice versa to
ease accepted behaviour.

With regard to this issue, Martha Farah believes that possible interventions on central nervous sys-
tem, such as subcutaneous stimulators or neurosurgical operations, should not be used in any cir-
cumstances to subjugate the interests of an individual to the interests of society, because they com-
mit a clear violation of the right to human dignity. To each convict must be granted the right to keep
his thought and his personality away from any kind of intervention aimed at damaging individual lib-
erty. The possible submission to permanent interventions as an alternative to imprisonment, inte-
grates in any case an implicit coercion to the individual will39.

Such instances of protection also emerge in the debate about the negative contribution given by
neuroscientific innovations to the privilege of nonselfincrimination during an investigation or dis-
pute. This privilege protects the defendant from being forced to sue by affirming facts from which his
responsibility may arise (in the United States this possibility is governed by the V Amendments to the

In this sense, he wrote: «A “resistible” treatment, such as a prison rehabilitation effort, still seems to leave
some freedom for choice; the more effective (and irresistible) the treatment, the greater the invasion of liber-
ty. I feel that there should be some protected space of cognitive liberty, but, given that all interventions affect
the brain, it is hard to see why mandatory brain interventions should be impermissible only if they are direct».

Cf. M. J. FARAH, Emerging ethical issues in neuroscience, in Nature Neuroscience, 5/11, 2002, pp. 11231129,
p. 1126.

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ISSN 22844503

37Cognitive liberty. A first step towards a human neurorights declaration

BioLaw Journal Rivista di BioDiritto, n. 3/2017

Constitution). However, it does not yet offer protection from possible coercive analysis of its mental
processes. The problem presents itself mainly when data obtained from brain scans, such as fMRIs,
are not only treated as information on the individual, but as true testimonies for nonintervention of
the right to selfincrimination 40.

As a result, Nita Farahany proposed the idea of the possible creation by the US Congress of a law on
the NonDiscrimination of Genetic Information to protect individual Cognitive Liberty, interpreted as
the right to privacy against mental processing41
. We think this is a good way to go ahead in the de-
fence of personal neurosphere: using the analogy with the international declarations that protect
the Human Genome.

5. Cognitive Liberty: positive formulation Cognitive Liberty and Human Rights

As we have seen, «Negative rights are those rights that impose obligations on governments and oth-
ers citizens to refrain from interfering with the rights bearer» 42. By contrast, the positive formulation
of Cognitive Liberty argues that the existing neurotechnologies should be widely available to anyone
who wants them.

The main cases on this theme concern the free personal use of psychoactive substances and cogni-
tive devices (such as Transcranial Direct Current Stimulator or Neuro Feedback Equipment43) which
may lead to a cognitive enhancement, even if the concept of enhancement may be related both to a
hypothetical individual level (such as, for instance, the increase of one’s own memory) and to a hypo-
thetical general level (such as, for instance, the drug treatment in academic exams)44. However, if, on
the one hand, the use of such “treatments” may be considered ethically permissible by society, on
the other hand, the limited evidence regarding their efficacy and the potential safety problems in the
long term might suggest being careful with their use. This dichotomy is also the basic foundations on
which the transhumanist and bioconservative debate is built. In fact, while the aim of the formers is
to «create the opportunity to live much longer and healthier lives, to enhance our memory and other
intellectual faculties, to refine our emotional experiences and increase our subjective sense of well
being, and generally to achieve a greater degree of control over our own lives» 45, the others argued
that the «use of CE could have profound and unpredictable consequences for society because it

Cf. M. IENCA and R. ANDORNO, Towards new human rights in the age of neuroscience and neurotechnology in
Life Sciences, Society and Policy, 13/5, 2017,
(last visited
12/09/2017). (last visited 12/09/2017)
, p. 16.
Cf. N. A. FARAHANY, Incriminating Thoughts, in Stanford Law Review, 64/2, 2012, pp. 351408, p. 406.
42 R. H.
BLANK, Cognitive Enhancement: Social and Public Policy Issues, London, 2016, p. 52.
Cf. H. MASLEN et al., The regulation of cognitive enhancement devices: extending the medical model, in Journal
of Law and the Biosciences, 1/1, 2014, pp. 6893, p.72.

Cf. N. BOSTROM and A. SANDBERG, Cognitive Enhancement: Methods, Ethics, Regulatory Challenges, in Science
and engineering ethics, 15/3, 2009, pp. 311341, p. 311.

N. BOSTROM, Human Genetic Enhancements: A Transhumanist Perspective in Journal of Value Inquiry, 37/4,
2003, pp. 493506, p. 493.

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