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. 

PROPOSAL FOR A VIABLE ALTERNATIVE TO THE “RIGHT TO BE FORGOTTEN”

A Danish lawyer goes to Paris to sue Google about a defamation issue. This sounds like a lot of juridical tourism to come. Not being satisfied with the verdict in one country, plaintiffs go to another country to try their luck again. As long as they have enough resources which means, „the right to be forgotten“ is a costly issue, suitable only to accordingly financed people.

But the issue goes deeper, is more worrisome. The “right to be forgotten” stands diametrical contrary to the achievements of the enlightenment. It pulls issues back into the dark of forgetting and becoming forgotten. Generations of historians had had a hard job to bring issues from the dark of being forgotten into the light of being known and becoming investigated.
There is a dangerous trait to manipulate history. Pharaohs withdrew the names of their predecessors from statues and shrines to make them forgotten. Recall the Auschwitz crimes and the enormous attempts in post-war Germany to make them forgotten. Which challenged the other side, to make them scrutinized in the light of science, it became the most investigated issue in history.
The right to be forgotten could evolve to a right to suppress unpleasant information. Political and other participants of all sort can sue to suppress knowledge, facts on the ground of defamation or false description.
People who were wronged by others will feel no real relief by this questionable right, because the issues can come back any time in a different robe. There is no guarantee for forgetting. When the issues revive, maybe one or two generations later, they cannot defend themselves anymore. Who takes then care of their reputation?
What could be an alternative?

1. Clarifying instead of suppressing
Because there will not be such a thing as a united view on a diverse discussed issue, it is more helpful to document all sides and angles to make them accessible. Completing perpetually the informations Instead of suppressing special views, on the ground of a diversity of incompatible juridical systems.

2. The right to be clarified  
Everyone should have the right to tell and publish his own story in case of discordance with a description of an issue. Often a story evolves over years, which should be documented and added to the issue, instead of being suppressed. Slanderer are quickly unmasked and become object of scrutiny themselves. In case of defamation those, whose name is clarified, can sleep better as always fearing a second attack on their reputation.

3. The impossibility of regional, national regulation 
The demand to delete an information globally, based on a local juridical decision is not feasible. Every other national or even regional judiciary can ignore the verdict and demand a re-installation of the information. The unfolding chaos of contradictory verdicts is conceivable.

4. Regulation by the global civil community
The decision to regulate an information on the global level should be settled by a global institution. An institution installed by the global civil community, not by the states or supra state organizations like the UN, which depend on the benevolence of national governments. The global civil society is maturing only by experiencing her own responsibility. The Internet is the best learning field imaginable.