Neurolaw and its legal protection

Eric Arthur Blair, better known under the pseudonym George Orwell, wrote the work of social fiction 1984, published in 1949, in which he tells the story of a civil servant in the Ministry of Truth of a totalitarian government with the function of changing deeds and facts and adapting them to the adopted political regime. So, due to the policy of control, the citizen had no way to express himself against, and his thinking was under the supervision of Big Brother, the dictator who imposed the doctrinal rules of government.

Orwell could never have imagined that his work would anticipate scientific progress, especially in the field of human knowledge and its consequent legal protection.

ON Cogito, ergo sum, since Descartes, has never been so appreciated and applied as at the present moment – insofar as it represents the mental activity of a human being – revealing his way of thinking, his emotions, his feelings and his projects. It is an activity that is inherent in the very process of living and fits perfectly into the scope of the manifestation of inviolable thought and freedom of conscience, which are therefore considered fundamental guarantees in the Federal Constitution.

The continuous progress of technology requires special protection of cognitive activity, which is responsible for self-generation and maintenance of living networks. Capra and Luisi correctly explain: In this way, life and knowledge are inextricably linked. Mind – or more precisely mental activity – is immanent in matter at all levels of life.1

This introduction is necessary to discuss the new existing technologies for introducing into the human body, via prostheses, chips and implants, tiny computers that can generate passwords, authorize digital currency transactions, open doors, measure and control heart rate, body pressure and countless others specialties. Finally, they create a new reality by introducing neural data, which is information obtained, directly or indirectly, from the activity of the central nervous system and accessed through invasive or non-invasive brain-computer interfaces.

In this way, looking more like science fiction – reporting a dystopian future in the coexistence of sentient machines with human beings already limited by an endless computer world – the interface between brain and computer is opened so that any electronic, optical or magnetic system can collect data of the central nervous system and transmit them to the computer receiver. In this way, by inserting a device into the human mind, man will be able to have an invasion of his thoughts and memories, since he will be a hostage of the technology itself.

It is useless to be surprised, nor to oppose such technology, because it will not only succeed, but will also progress in this direction. Regardless of how significant scientific advances are in areas that are still little explored, science will consider them experiments that are just beginning. Therefore, biotechnology is advancing with great strides and without any signs of retreat and will quickly achieve the proposed goals. Unless the man, her natural recipient, turns on the red light and curbs all concentrated effort to have no more interest, which nowadays, considering the benefits already gained, is difficult.

Proposals to make human life easier by introducing technological devices are very interesting and attractive, real magic, giving the feeling of managing science for the benefit of man. But there is a need for caution and a lot of caution regarding possible damage to the individual identity of the data subject, even causing irreparable damage to the health, autonomy and psychological organization of his life.

The new technology will connect the nervous system to the computer in order to capture all data there, including, among them, the most intimate and confidential ones. Such information belongs to a person’s mental heritage and, according to the conventional rule, only he will have access to it. A person in his brain – and all important records are stored there during his life – retains whether they are connected to him personal, social, family life and the most preserved intimacy that will never be externalized, all at the discretion of the information holder who, if he wishes, will choose under the scrutiny of his judgment which items he will be able to make available to third parties. Now, with the collection of neurological data, the brakes have been broken and there is an unjustified invasion of citizens’ privacy. And, in addition, Ulpian’s Digest rule also drops: Cogitationis poenae non patitur (No one can be punished for their thoughts).

Chile’s federal senate recently unanimously approved a proposal to include neurorights or brain rights in the federal constitution – based on the principles of human dignity and self-determination – and should be the first country in the world to implement guardianship of matter.two The intention is to preserve the physical and psychological integrity of the individual, so that no one, not even the state, can use technology to increase, decrease or damage the integrity of the individual, without the consent of the holder.

Science is dynamic and will expand more and more to create a new reality for humanity, which in turn, by adopting it, deserves the necessary protective protection, with strict adherence to ethical, bioethical and legal constraints. Therefore, in order to protect this new technological progress, a bill was presented in 2021, authored by the federal representative Carlos Gaguim, which partially amends the law 13.709/2018 (General Law on the Protection of Personal Data), to include in it the definition of neural data and regulate citizen protection in relation to information stored in the human brain.

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1 Capra, Fritjof; Luisi, Pier Luigi. Systematic View of Life: A Unique Conception and Its Philosophical, Political, Social, and Economic Implications 316.

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