Do We Have a Right to Mental Privacy and Cognitive Liberty? Consequences for customers and developers of tech products.

In his impressive article “Do We Have a Right to Mental Privacy and Cognitive Liberty?” (Scientific American, 2017) the Swiss scientist Marcello Ienca describes the challenges which privacy faces in the light of new technologies which include interference in neurological processes, our brain.
All new technologies ignite fears. As scientists warned with the introduction of the railway, velocity above 30 km/h would be deadly for humans, they warn today light speed traveling would be fatal. Despite all technology optimism, skeptics help to recognize flaws in time, detect dangers before they become life threatening.

New technology to intrude into privacy
Ienca describes the moral and ethical risks of new technologies which interfere in deepest corners of privacy. The warrant “the thoughts are free, no-one can detect them” which was taken for secure, is devalued. He cites various new methods and devices which interfere in the “inner privacy” without the knowledge and consent of the affected person. Ienca stresses on uses for the military, usage in courts, predatory marketing studies: “With the growing availability of Internet-connected consumer-grade brain-computer interfaces, more and more individuals are becoming users of neurodevices.”

Ienca refers to possible misuse of neurological devices for “brainjacking”. Subsequently he demands a “reconceptualization of the right to mental integrity.” which allegedly is met by Article 3 of the EU’s Charter of Fundamental Rights “as a right to mental health [which] should not only protect from mental illness but also from illicit and harmful manipulations of people’s neural activity through the misuse of neurotechnology.”.

The political dead-end-street
To protect the individuals from losing their “right to psychological continuity [which] might preserve people’s personal identity and the continuity of their mental life from unconsented external alteration by third parties” he cites an initiative of the European Parliament for a global ban of research “which seeks to apply knowledge of the chemical, electrical, (…) or other functioning of the human brain to the development of weapons which might enable any form of manipulation of human beings.”

Curiosity trumps morals
To shield individuals, humanity from the misuse of technology by banning research was never a good idea in human history. It is was never possible to ban humans from following their curiosity if for the good or the evil. Those who want to stop research to protect us from the evil, inhibit unwillingly the research for the good as well.

The popular game when children keep their hands in front of their eyes and rejoice excitedly: “You can’t see me” does not work in the world of adults. The more promising tangible way is to address the alleged dangers as early as possible, fight misuses relentlessly, following the old game of cops and robbers.

Enhanced privacy, morality has a price
For the technology world, it means, to develop appropriate products which meet the demand of the customers. If the latter want products which respect their privacy, the tech world should offer them. Ads relying on business models derive from the early period of the Internet when customers were not willing to pay subscription fees. As the internet evolves, business models evolve too and those customers who emphasize on enhanced privacy as part of their lifestyle and morality will be willing to pay a premium.

GOOGLE’S LANDMARK MOVE

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The  “right to be forgotten” is valued as a landmark decision of the European Union’s Court of Justice (ECJ). In brief, it allows the removal of names, information from search results which plaintiffs find to be ‘inadequate’ or ‘irrelevant’. Despite the wishy-washy character of the wording which could mean all or nothing to be removed, dependent on the subjective assessment of a court, it is a dangerous sentence in regard to the freedom of information, science, historical facts. At worst, genocides could disappear from the landscape of information under political influence.

A Landmark Move
Given these uncertainties, Google’s move to appeal France’s highness court has a landmark character itself, demanding clarity in the swampy thicket of wording. Until now, no notable European organisation sued in regard to this questionable sentence. Google shows balls in a situation where European authorities in Brussels have decided this company be their prior target in their conflict with the “American Internet Giants”, claiming monopoly issues.

The Alternative
The European Union’s Court of Justice decision should simply be removed, “forgotten”. This is the 21st century, the politics of suppressing information should be past history. Of course, deliberately false information have to be removed, which is not a matter of a nebulous “right to be forgotten”. All disputed information should not be removed as long as they are based on verifiable facts. The involved participants should have the right instead to add their views to the scrutinized information in comments, statements which clarify their position.

TECH VS. STATE – STALEMATE? (ACT 3)

From a foreign perspective the Fed’s calling of the ‘all writs act’ into game sounds like a governmental declaration of defeat. Especially when scrutinizing the cases when this weapon of last resort sould be used in “…. the absence of alternative remedies—the act is only applicable when other judicial tools are not available“. Are really all means exhausted? Or is this just a sequel of the last standoff between tech and state?

The forth and back goes on as anticipated, indeed quite entertaining. But the question is no more who blinks first, but who has the most supporters in state and civil society. The Feds did not answer the pivotal question about the alternative remedies, because until today they never were seriously challenged. Due to the rule of law, they are used to have the upper hand since 1776. But does this recipe still work in the 21st century?

A dynamic equilibrium always needs to be adjusted, permanently. This is valid for all societies, predominantly democracies. The 21st century seems to become the century of the civil society and the citizens are the heroes of history, of their own history. Sorry government, today the balance leans more in the direction of the citizens.

Though it looks like a stalemate, an argument without winners, the show is not over yet. As in a movie drama, the participants must show muscles, determination, grim faces to convince us, the audience, how seriously they are about their position. Some participants in the political circus yet demand for a compromise. But there is no compromise needed, just a joint will to solve the task collaboratively. The tech community is savvy enough to develop sophisticated tools to give the governmental agencies means to do their job adequately while preserving privacy as well. 

BIG DATA, BLESSING OR CURSE?

1. Americans are unhappy with sharing data.  

A new study (Annenberg School for Communication at the University of Pennsylvania) indicates 70 percent of Americans are discontent with the social media trade sale: ‘I give you my services for free; in exchange you give me your private data for free”. 
Source: NYTimes: Sharing Data, but Not Happily

2. Big Data, benefits and malpractice’
Big data’ are pivotal to evolve civilisation, if used to enhance longevity, fight poverty, ease everyday life, develop automated solutions (robots) of once burdensome work.  
’Big data’ can be misused for purposes which are not in the individual’s and civil society’s best interest.  

For conceptual clarification: 
”Big data refers to the large amounts of information that has become accessible thanks to services like the Internet. Big Data is useful only if its information content is evaluated for accuracy, relevance, and timeliness. What used to be called knowledge based enterprises are designed to transform unevaluated information (raw data) into information whose accuracy and authenticity are verified (knowledge). It is still a matter of manipulating information to make it usable.“ 
(Citation Richard Wright).

3. Two complementary roles of the individual 


The individuals are the mines 
Private data embody the individual’s experiences, behavior, customs, wishes, dreams, anticipation of their future lives. They are valuable from the start and evolve with every action of the individual, adjust fluently and change continuously over time. Therefore these individual’s data are not just ’raw’, they should be evaluated as preprocessed. 

The individuals are the audience 
The processing of raw and preprocessed data to useful data for science, research & development, predictable marketing etc. are driven by an anticipated outcome to improve civilization. Among others, they are focused at the individuals as market participants to buy new products, services.
Therefore individuals are both, subjects and objects of mining and processing their private data.
4. Why privacy and the use of individual data matter to individuality


Individuals are the indisputable owners of their private data. 

Currently, as originator and owners, individuals have no or only limited influence how these data will be used, if for their benefit or for their harm. Individuals have figuratively no influence if their private data become a blessing or a curse for themselves, the civil society, mankind in general. 
Individuals have no influence of the use of their data in media, social media, politics, info processing (banking, insurance), dissemination (telephone, broadcasting), Internet of things, marketing, research & development for new or improved products and services. 

Consequences to be considered from the angle of the individual: 

Responsibility  
The double role as subjects and objects, originator and beneficiaries requires a specific responsibility of individuals in respect of the use of their private data, which may have effects on others too. 

Control 
As the Annenberg study shows, the majority of individuals is “not happy“ with the uncontrollable use of their data. This might improve with enhanced privacy rules, but seems not to be enough. Individuals should decide themselves, if when and how their data are to be used or not to be used for data mining. The retroactivity of processed data on the individuals themselves, the influence on their individuality, is an issue to be monitored and analyzed over time. 

The free deliberate development of individuality is compromised if individuals cannot control their own lives to the full possible extent, i. e. here the use of their private data.