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Last month the Chilean Supreme Court handed down a historic judgment with respect to neurotechnology and human rights, which addresses the increasingly important issue of mental privacy.

This case is very closely connected with another historically significant legal event – the world’s the first neurotech-inspired constitutional change which took place in Chile at the end of 2021.

The modification inserted the following words into section 19 of the Constitution:

Scientific and technological development will be at the service of people and will be carried out with respect for life and physical and mental integrity. The law will regulate the requirements, conditions and restrictions for its use in people, having to protect especially the brain activity, as well as the information coming from it. 

As well as its broader significance for neurotechnology and human rights, the change might be thought of as a milestone in the protection of neurodata (data derived from the brain or nervous system). This legislative step has set a precedent and other countries, including Brazil and Mexico are now also looking at constitutional change, and the US-based Neurorights Foundation has been active in related advocacy.

It is very significant that there is now a decided case which is in part based on the 2021 modification from the very top of Chile’s court hierarchy.

The recent decision

The Supreme Court decision concerns a product (marketed as Insight) which involves an external headset which monitors the brainwaves of users and might be used to monitor cognitive performance including levels of attentiveness or stress or used to control devices.

The court has ordered Emotiv, the neurotech company who produced the product (a company which began its days in Australia in 2011) to remove one of their citizen’s brain data from their portals and the cloud. It also requires some of its regulatory bodies to further investigate Emotiv’s neurotechnological device. The Court’s reasoning is in part based on the 2021 constitutional change.

Guido Girardi is the former Chilean Senator who was a driving force behind this constitutional change, and was also the appellant in this case. He is a significant figure in the legal response to this emerging technology because of his role in Chile’s first-mover position in the global development of what is sometimes known as ‘neurorights’.

The proactive legal response to neurotech from Chile is of interest to the world but I will focus primarily on the significance of the Chilean developments for my own country, Australia.

The significance the Chilean developments for Australia

Regulatory and human rights developments with respect to neurotech overseas are particularly important in Australia given it has a very significant history of neurotech and expertise more generally in biomedical engineering (the cochlear implant was developed in Australia and the company Cochlear is based here). Australia’s industry is also clearly having an impact on other countries as can be seen from Emotiv’s role in this Chilean decision.

A further reason why Chile’s response is significant for Australia is because at the time of writing the Australian Human Rights Commission has recently (and rightly) prioritised neurotechnology as an area of engagement and it has just made a submission to the Advisory Committee to the United Nations Human Rights Council on the issues.

Furthermore, there has been an increase in commercial interest in neurotechnology. One of the world’s most prominent brain-computer interface companies; Synchron, which came out of the University of Melbourne has received investment from Jeff Bezos and Bill Gates. Elon Musk has invested in Neuralink (recently valued at $US 5 billion) and Australian mining magnate, Gina Rinehart has invested in Omniscient Neurotechnology. The level of investment alone suggests the time is right for Australia to further consider a response to neurotechnology but there are still other factors that make a consideration of the Chilean developments pertinent now.

Australia is currently considering the introduction of a federal Human Rights Act. The nation is a federation and, unusually for a western style democracy no such legislation exists at the national level (although some of the constituent parts of the federation do have such acts).  A number of submissions to Australia’s current Parliamentary Joint Committee Inquiry into Australia’s Human Rights Framework (including one from some members of an international group that I am a member of – The Minding Rights Network) have referred to issues likely to emerge from advancements in neurotechnology.

The developments in Chile could inform and shape Australia’s nascent response to neurotechnology and human rights. The Australian Human Rights Commission has already taken note of what has been happening in Chile, referring to the constitutional change in their aforementioned submission to the UN.

Neurotechnology, human rights and the path forward for Australia

Australian scholars and relevant institutions should now consider this Chilean decision. I will not set out the various ways that neurotechnologies might more generally challenge human rights here but simply note that as we start to develop a closer connection with technology, whether incorporating into our brains and nervous systems by implanting it in our bodies, or interacting with it in non-invasive ways through wearable devices, issues will be raised that go beyond privacy. These devices might not just extract information but act upon our brains and nervous systems (perhaps by way of electrical stimulation) in order to influence them.

As noted by many commentators, issues such as increased susceptibility to manipulation of behaviour and the possible emergence of a neurotechnological divide in which some have access to neurotechnologies that have a cognitive enhancement capacity, may start to have an impact on society.  This may take place in conjunction with the realisation of enormously beneficial therapeutic neurotechnologies that greatly alleviate suffering and restore lost capacities in those with disabilities.

As well as other nations (particularly those in Latin America) that are acting in response to neurotechnology, international bodies such as the OECD, the Council of Europe and the UN are also working on the emerging issues. As already indicated the Australian Human Rights Commission is now active in considering what Australia needs to do as well as contributing to discussions about what the international community might also do.

But it seems the inquiry into Australia’s response to neurotechnology needs to expand. Of course, human rights are vitally important but neurotechnology appears very likely to bring challenges in a variety of areas of law. It seems desirable that Law Reform Commissions in Australia start to look at the emerging challenges and of course a variety of regulators, for example, the Office of the Australian Information Commissioner, will also need to engage. A further question will be the boundaries of the regulators and perhaps even the number of them – for example is medical regulator (the Therapeutic Goods Administration) the appropriate body to assess possible future neurotechnologies that cognitively enhance rather than simply provide therapeutic intervention?

One vitally important consideration in all of this must be the need to avoid a regulatory environment that thwarts the development and roll out of beneficial therapeutic neurotechnology – this technology must be supported rather than impeded. Australia’s aim should be to produce a regulatory environment that supports responsible innovation, particularly in the very important area of therapeutic interventions.

But still there are human rights issues and many other legal challenges and some of these matters will require political leadership. Guido Girardi has been prominent in the political, and now judicial, developments in Chile but there is as yet no similar figure in Australian politics.  Whilst in Australia artificial intelligence is currently, at least to some extent, on the political agenda, the more specific issues relating to humans developing a much closer connection or even merging with technology are entirely absent from Australian political discourse. This now needs to change.