Brain Fingerprinting and Civil Liberties

Functional Magnetic Resonance Imaging (FMRI) otherwise known, as brain fingerprinting will revolutionize how governments worldwide administer security and criminal justice. The potential repercussions for privacy rights are devastating. In years to come governments as well as corporations will possess the tools to examine an individual’s brain waves and attempt to determine if they’re lying.

In effect, FMRIs are neural imaging of one’s brain waves. The technology allows researchers to map the brain's neurons as they process thoughts, sensations, memories, and motor commands. Since debuting a decade ago, brain fingerprinting has facilitated transparency with the cognitive operations behind behavior such as feeling stimulated by music or recognizing a familiar face in a crowd.

FMRIs have also successfully helped neurologists to detect early signs of Alzheimer's disease and other disorders without invasive surgical procedures. Hence, there is no doubt that FMRIs represent great power and reach. The temptation to use FMRIs for purposes beyond medical practice may be irresistible for governments and corporations with access to the technology.

Jeffrey Rosen, a law professor from George Washington University specifically addressed the American Constitution and new technologies in an August 2005 article of the New York Times Magazine about then Supreme Court Justice nominee John Roberts. Among other issues Rosen speculated about was FMRIs and the 5th amendment:

“It's an open question, under the Supreme Court's current doctrine, whether FMRI scans, used as a sort of high-tech lie detector, would be considered a form of compulsory self-incrimination that violates the Fifth Amendment. If the justices viewed an involuntary brain scan as no more intrusive than a blood or urine sample or an ordinary fingerprint, there wouldn't be any Fifth Amendment problem. But if the court were to decide that FMRI scans are not only searching for physical evidence but also encroaching on a suspect's private memories and consciousness, the justices might conclude that the suspect's mental privacy is invaded and that he has been forced to testify against his will.”

For his article, Rosen also interviewed Carter Snead, a bioethicist at the University of Notre Dame who studied nero-imaging techniques that can detect the presence of electrochemical signals in the brain:

“There is also the possibility that police officers or counter-terror experts may eventually search suspects for brain waves that suggest a propensity toward violence -- a sort of cognitive profiling. 'You can do an FMRI scan showing that the structures in the brain responsible for impulse control and empathy are underactive and the parts of the brain responsible for aggression and more animalistic, violent activities are overactive,' Snead explained. 'Maybe with these nascent technologies, we'll be able to develop some kind of profile for a terrorist.' Suspects who show a propensity for violence might be detained indefinitely as enemy combatants even though they committed no crimes.”

It sounds like science fiction. Yet FMRIs are currently used in India. An article in the March 17th edition of New Kerela reported that Javed Shukat Khurshid, one of seven convicted murderers escaped police custody after sentencing. The article reads as any other newspaper in the world might describe such events except for this:

“The court had earlier awarded life imprisonment to Javed and six others, including Ismail Barafwala, Amjad Khan Pathan, Mehboob Khan Pathan, Sajid Khan alias Anna, Usman Gani alias bhola and Younis Sheikh for rioting and murdering a man on November 11, 2003.

The judge awarded the sentence after considering the results of the brain finger printing tests performed on the accused, among other facts in this case.”

On April 17th, New Kerela reported that India’s Minister for Science and Technology, Kapil Sibal announced a high technology initiative

“to enhance the speed and degree of fair dispensation of justice.”

According to the article, Minister Sibal advocated use of high technology because,

"We have seen many cases in which people have allegedly gone back on their statements. The aim is to reduce dependence on human beings."

As for brain fingerprinting itself, Minister Sibal noted that,

“It will help in validating the evidence. It will give an idea of whether a person was present at the site of crime or participated in the crime."

Sibal boasted in the article that utilization of this kind of technology in solving crimes would be implemented in twelve months. It’s only a matter of time before such a protocol spreads to law enforcement agencies worldwide – including the United States.

Steve Silberman wrote in the January issue of Wired that:

“Now FMRI is also poised to transform the security industry, the judicial system, and our fundamental notions of privacy. I'm in a lab at Columbia University, where scientists are using the technology to analyze the cognitive differences between truth and lies. By mapping the neural circuits behind deception, researchers are turning FMRI into a new kind of lie detector that's more probing and accurate than the polygraph, the standard lie-detection tool employed by law enforcement and intelligence agencies for nearly a century.”

We know that polygraphs, commonly known, as lie detectors are unreliable. Whether FMRIs are reliable requires more empirical data. Perhaps such a device may prove effective in solving crimes or preventing terrorism. The potential to save lives certainly exists and can’t be casually dismissed.

However, it’s use means encroaching upon the province of an individual’s thoughts and what government on Earth can be entrusted with such power? What is the legal framework for deploying this technology? Suppose employers coerce employees into signing waivers for FMRI scans to be administered? What if whistle blowers are intimidated into silence because of FMRI scans? Do the potential lives saved from crime prevention justify the potential abuse?

There are numerous questions about FMRIs requiring debate and civil discourse. Yet it’s doubtful that one in a thousand people are even aware of FMRIs existence. Meanwhile, civil liberties are debated within the familiar context of free speech, reproductive rights, gay rights and so forth. Those issues certainly merit robust engagement by the public but civil liberties are more than abortion rights and gay marriage. Within twenty years many of our contemporary debates will seem quaint and provincial.

Nobody asked John Roberts or Samuel Alito about technology and the law during their confirmations hearings before the Supreme Court. These men will preside over what the legal framework is for protecting civil liberties with FMRI scans for decades to come. Senator Joe Biden for example talked a great deal during both hearings but he didn’t ask a single question about these issues. Neither did anyone else on the Senate Judiciary Committee. The press was more concerned about the tears of Alito's wife.

Without public awareness, no one will raise important questions with future judicial nominees. I urge citizens to familiarize themselves with the issues of technology and civil liberties. Only then will our representatives properly engage

It is imperative that Democrats champion civil liberties by aggressively asking if privacy can be respected in pursuit of security with FMRI technology. Civil libertarians who vote Republican also are obliged to question whether their party can be trusted to utilize FMRI technology responsibly.

I fear my Democratic party will be timid in standing up for civil liberties when this technology is rolled out. It’s not hard to see conservatives portraying opponents to its’ use as soft on crime or terrorism. I also worry that the public at large may be too easily regulated by fear and not question whether their freedoms are in jeopardy.

Citizens worldwide need to start asking their leaders about FMRI scans while there is still time. And time is growing short.

SIDEBAR: I received an email stating that the Jeffrey Rosen New York Times Magazine article I referred to above mistakenly "conflated" brain fingerprinting and FMRIs and he referred me to this website. However, the University of Minnesota describes them interchangeably. Either way the issue of civil liberties and ethics remains the same. I intend to revisit this topic in a couple of years and review India's experience with this technology in their justice system.

I cross posted this topic on Daily Kos, My Left Wing, Booman Tribune, My DD and European Tribune and the comments from those communities are worth reviewing. Numerous comments semantically objected to the term "brain fingerprinting" and suggested that we need different terminology. They may have a point and the thoughtful email I received about Rosen's article makes me inclined to agree.