“Cognitive Liberty” and The First Amendment as a Weapon in the Fight Against Technological Intrusions of the Mind

By: Emma Schambach, Vol. 22 Staff Writer

The advent of neuro-surveillance technologies, capable of delving into the depths of human thoughts and translating those thoughts into readable language, presents an unprecedented challenge to the sanctity of cognitive liberty—a concept that encompasses the essence of individual freedom in the digital age. These technologies include wearable devices that measure brainwave patterns in order to provide users with information regarding their health, and mental focus, but which can be used to invade privacy and put internal thoughts at risk of external violations. This post explores the intricate relationship between cognitive liberty and the First Amendment, emphasizing the critical need for a legal framework that adequately protects against abuses stemming from neuro-surveillance technologies.

Cognitive Liberty at the Crossroads of Innovation and Privacy

Neuro-surveillance technology, including Electromyography (EMG) and Electroencephalogram (EEG), each of which involve the measurement of brainwaves using different technologies, has the potential to revolutionize not only medical treatment but also consumer technology by providing insights into the human brain’s intricate workings. However, this technological leap forward comes with a significant privacy price tag. The same technology that can unlock new realms of understanding and interaction also poses a grave risk to cognitive liberty, as it opens the door to unprecedented levels of surveillance and data mining.

The Legal Quandary of Neuro-Surveillance

As neuro-surveillance technology evolves, the legal system finds itself ill-equipped to address the nuanced challenges it presents. Traditional legal privacy frameworks may fall short of providing the necessary protections for neuro-data, leaving a gaping void where cognitive liberty hangs in the balance. This scenario raises pressing questions about the best legal avenue to safeguard against government intrusion on our most private thoughts and the data derived from them.

The First Amendment: A Beacon of Protection

Amid various legal theories for privacy protection, the First Amendment emerges as the most potent shield against undue government surveillance. Amidst concerns in the legal community that the Supreme Court’s ruling in Dobbs v. Women’s Health may dismantle the current “penumbras” protecting privacy under the constitution, the First Amendment provides a clear-cut solution. Current privacy law hinges on the court’s reading a mixture of constitutional provisions to provide a hazy protection for privacy implied within an amalgamation of readings and interpretations of several constitutional amendments. The First Amendment in comparison, with its historical protection of freedom of thought and expression provides a robust foundation for arguing that cognitive liberty falls within its purview. By treating freedom of thought as an inalienable right, First Amendment case law offers a direct pathway to safeguarding the inner sanctum of the human mind against unwarranted intrusion.

Case Law and Cognitive Liberty

The exploration of case law reveals the First Amendment’s pivotal role in protecting cognitive liberty. Landmark decisions including the recent Supreme Court ruling in 303 Creative v. Elenis, which relied in part on West Virginia State Board of Education v. Barnette, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, and Wooley v. Maynard in reaching its final ruling that Americans have the right to speak in a way that represents their own internal thoughts, have underscored the importance of safeguarding individual thought processes from governmental overreach. Further, the First Amendment case law which recognizes First Amendment protections against compelled speech provides that speech derived from brainwave data that is accessed without consent could be treated as constitutionally impermissible compelled speech. These rulings highlight the necessity of interpreting the First Amendment expansively, ensuring that its protections extend to the modern challenges posed by neuro-surveillance technologies.

Towards a Legal Paradigm Shift

The rapid integration of neuro-surveillance technologies into everyday life necessitates an urgent reassessment of our legal approaches to privacy. This requires a paradigm shift that explicitly recognizes and protects cognitive liberty within the legal framework of the First Amendment. By recognizing cognitive liberty, and the rights to privacy in our thoughts as falling within First Amendment rights, courts can sufficiently protect Americans from abuses of neuro-surveillance data. By doing so, courts can ensure the fundamental right to freedom of thought remains inviolate, even in the face of technological advancements that threaten to penetrate the most private corners of our minds.

Conclusion: Affirming the First Amendment’s Role in Protecting Cognitive Liberty

In conclusion, as society stands on the brink of a new era in neuro-technology, the protection of cognitive liberty becomes paramount. The First Amendment, with its deep-rooted commitment to safeguarding freedom of thought and expression, represents the most viable legal mechanism to address the challenges posed by neuro-surveillance technologies. It is imperative for the legal system to adapt proactively, ensuring that technological progress does not come at the expense of our most fundamental freedoms. By upholding the principles enshrined in the First Amendment, we can navigate the complexities of the digital age while preserving the sanctity of cognitive liberty for generations to come.