Brain Mapping, Civil Liberties & Obama

Longtime readers of the Intrepid Liberal Journal may recall my April 2006 posting entitled, "Brain Fingerprinting and Civil Liberties." One mistake I made at the time was conflating the acronym FMRI (Functional Magnetic Resonance Imaging) with the term brain fingerprinting. Perhaps the most accurate generic term is brain mapping.

At the time I came across numerous references with respect to how brain mapping technology is implemented within India's criminal justice system. Specifically, I noted how an article in the March 17th, 2006 edition of New Kerela reported that Javed Shukat Khurshid, one of seven convicted murderers escaped police custody after sentencing. It read like any other newspaper might over such an event 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.”

As I learned two years ago, the integration of brain mapping technology with India's criminal justice system is common practice. Since then I've been concerned with how America reconciles sophisticated technology such as brain mapping and civil liberties. With respect to the federal judiciary, our body politic typically obsesses over cultural issues and neglects to ask what predisposition or ideology any justice a president nominates will bring to cases involving high technology. Instead we wage culture wars over reproductive rights, gay marriage, affirmative action and so forth. I fear America could integrate brain mapping technology into our criminal justice system without any debate or even notice it happening.

Two years ago I wrote:

"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?"

These are the sort of questions future justices nominated by President-Elect Barack Obama for the Supreme Court as well as lower courts will have to answer. Now two years later I've come across a September 16th article of Finding Dulcinea that reports India's courts are being criticized for using brain scans.

Specifically, Finding Dulcinea reports how an Indian student named Aditi Sharma was convicted earlier this year of murdering her ex-boyfriend Udit Bharati by giving him a “Prasad” laced with arsenic. Brain Electrical Oscillation Signature (BEOS) profiling, a brain-scanning technique developed by Indian neuroscientist Champadi Raman Mukundan was a component of the government's case against Sharma.

As the article notes, Sharma underwent a BEOS test, which involves an electroencephalograph measuring the electrical activity in her brain:

"Wearing a cap with 32 electrodes connected to a computer, Sharma sat quietly as she was read a description of the crime in the first person. When she recognized an event, specific parts of her brain that contain 'experiential knowledge' lit up and were detected by the BEOS computer."

With respect to Sharma's case, a July 21st edition of The Times of India, also referenced by Finding Dulcinea, reported that,

"Aditi was found to have experiential knowledge for having a plan to murder Udit by giving him arsenic. Experiential knowledge was also found of her having gone to a temple to collect 'prasad', buying arsenic from a shop, calling up Udit and giving him the poison-laced 'prasad'.

Emotional experience of getting relieved and scared in connection with giving the arsenic laced 'prasad' to Udit was also found present on the BEOS test. Aditi also underwent a lie-detector test, which revealed deception on all relevant questions. The judgment copy dedicates about 10 pages on how the BEOS technique was conducted."

Ultimately, how technology is developed elsewhere has repercussions everywhere. Whatever you want to call it - FMRI scans, BEOS tests, brain mapping or brain fingerprinting - is technology scientists are actively pursuing worldwide and monitoring the innovations of their peers. The BEOS system was created from technology and theories devised by several American scientists, including Lawrence Farwell, Emanuel Donchin and J. Peter Rosenfeld. Farwell is known as the pioneer of brain fingerprinting and even used the technology to help free innocent convict Terry Harrington after he had been falsely convicted of murder.

As I noted two years ago, the potential benefits of brain mapping technology should not be casually dismissed. Whether it's freeing an innocent person of a crime they didn't commit or preventing terrorism, the potential for good certainly exists. One could even argue that use of such technology completely obliterates the rationale for torture. How can the government justify water boarding when they have the ability to utilize a high-tech mind meld at their disposal?

But the technology remains unproven and right now the price for integrating it into our our justice system appears too high. India's experience with brain mapping technology is instructive and should give all of us pause.

As one of the aforementioned American scientists on the cutting edge of developing brain mapping technology, J. Peter Rosenfeld noted:

“Technologies which are neither seriously peer-reviewed nor independently replicated are not, in my opinion, credible. The fact that an advanced and sophisticated democratic society such as India would actually convict persons based on an unproven technology is even more incredible.”

Fallout from the Sharma case may result in India's criminal justice system no longer using brain mapping technology to administer justice. A six member committee led by India's director of the National Institute of Mental Health and Neuro Sciences concluded that there is "sub-optimal scientific basis for them to be used as evidence in court of law.”

Yet the technology continues to go forward. Private security firms and scientists are actively soliciting America's federal government to utilize brain mapping technology in the "war on terror." What happens when the U.S. Supreme Court presides over cases in which brain mapping technology is a factor? How will the Supreme Court as well as lower courts rule if the technology is abused by the government or private corporations?

A decade ago President-Elect Obama taught constitutional law. Has he, I wonder pondered what the legal framework for brain mapping technology should be? Will President-Elect Obama or his Attorney General ask any prospective nominee to the federal judiciary their view of how to reconcile technology and civil liberties? He should. And it's our obligation in the progressive community to remind him.