“An important question is how well Australian law is suited to the challenges of technologies that monitor and/or influence the brain.”
Protecting our brains
“Australia needs to consider what kind of response is needed here, given that governments in other countries have already taken steps to address these issues,” said Dr. McCay.
“In August of this year, Chile’s Supreme Court issued a historic decision on neurotechnology and human rights that addressed the issue of brain data protection, based on their recently updated constitution.
in 2021 In Chile, the world’s first neurotechnologically inspired constitutional amendment took place, and this modification added the following words to Section 19 of the constitution:
The development of science and technology will be for the benefit of people and will be carried out with respect for life and physical and mental integrity. The law will regulate the requirements, conditions and limitations of its use for people who need to protect brain activity, as well as the information obtained from it.
This change was important for the protection of neurodata (data obtained from the brain or nervous system) and set a precedent, and other countries are now also looking at constitutional changes.
The judgment of the Supreme Court concerned a product (sold as Insight), which monitors users’ brain waves. The device can be used to monitor cognitive performance, including attention or stress, or to control devices.
Based on 2021 constitutional amendments, the court ordered Emotiv, the company (started in Australia) that manufactured the product, to remove the appellant’s brain data from its portals and The Cloud.
Appellant Guido Girardi, a former Chilean senator, was in 2021. driving force behind constitutional change and a strong advocate for “neuro-rights”.
Human rights and neurotech
Dr McCay says the Australian Human Rights Commission is now actively considering what Australia and the international community can do. The Commissioner for Human Rights and the Chair of the Human Rights Commission have spoken at events in Australia focusing on neurotechnology, and the Commission recently submitted a UN statement on neurotechnology and human rights.
“However, it appears that Australia’s response to neurotechnology needs to be expanded,” said Dr. McCay.
“These devices can not only extract information, but also affect our brains and nervous systems.
“Neurotechnologies challenge various areas of law. This will require law reform commissions in Australia to look at the challenges ahead, which also means that various regulatory bodies, such as the Australian Information Commissioner’s Office, should consider the implications of the technology.
“However, when dealing with legal issues, we need to avoid a regulatory environment that inhibits the development of useful therapeutic neurotechnology – a technology that should be supported, not hindered.”
“These issues will require political leadership. While artificial intelligence is currently at least partially on the political agenda in Australia, more specific human-related issues draw a much closer connection, or even fusion with technology Completely absent from Australian political discourse.
“Now that has to change. It is critical to pay close attention to the laws that protect the privacy and integrity of our brains, and to consider the many other ways in which neurotechnology will affect the law.
He adds that the developments in Chile are particularly relevant to Australia because of the recent increase in commercial interest in neurotechnology.
“The level of investment alone suggests that the time is right for Australia to further consider a neurotechnology response,” said Dr. McCay.
Dr McCay analyzes the significance of the case in more detail in this article Law Society of NSW.
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