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Brain Fingerprinting and Civil Liberties

by Intrepid Liberal Journal Sun Apr 23rd, 2006 at 11:08:58 PM EST

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.

Will there be limits put on technology? All depends on who is in power, it would seem.

"Once in awhile we get shown the light, in the strangest of places, if we look at it right" - Hunter/Garcia
by whataboutbob on Mon Apr 24th, 2006 at 06:39:01 AM EST
I suspect some technology is irrestible for any government in power.

Intrepid Liberal Journal
by Intrepid Liberal Journal on Mon Apr 24th, 2006 at 02:17:37 PM EST
[ Parent ]
Great diary,  Intrepid Liberal Journal! You are so right about the importance of public awareness and mobilisation for key issues such as FMRI! I also agree with you that fear plays a very crucial role in shaping public opinion... However, I hope that respect and desire for freedom will offset whatever fears nowadays democracies have. Otherwise, they won't be true democracies, will they?
by Laura on Mon Apr 24th, 2006 at 10:19:34 AM EST
True enough Laura, democracies are not true democracies if they don't stand up to fear.

Intrepid Liberal Journal
by Intrepid Liberal Journal on Mon Apr 24th, 2006 at 11:06:46 AM EST
[ Parent ]
"...However, I hope that respect and desire for freedom will offset whatever fears nowadays democracies have."

Unfortunately those ideas, values and principles are overexploited nowadays and it is precisely in their name that governments will launch (justify) the use of FMRI.
Their true meaning seems to be lost and it is only speculation that is left.

by Harlem on Mon Apr 24th, 2006 at 03:51:03 PM EST
[ Parent ]
I am afraid you are very much right, however, I still have my hopes. And yet, if you remember the history of the founders of the States...well you'll see that the desire for freedom was deeply rooted in their mentality. After all, most of them were ready to leave everything behind just to try their chance in the "New Land" so they would despise all economic or political restrictions on their way. They were also tired of England's ambitions to overrule the colonies. Moreover, the first US presidents were strongly influenced by Roseau and the enlightenment philosophy. So I think, that even today freedom continues to be a sacred word for every American citizen. Well, I haven't forgotten the repressions of the African-Americans and the Indians, but they are another issue. And finally, as we have the Internet as an immense source of information, it won't be so difficult to inform the population what FMRI is and why it is so dangerous.
by Laura on Tue Apr 25th, 2006 at 03:36:23 PM EST
[ Parent ]
Aren't you confusing the Pilgrims with the Founding Fathers?

You have forgotten the repression of the labour movement, and in more recent times the FBI operations against the civil rights movement.

I wish I could share your optimism.

A society committed to the notion that government is always bad will have bad government. And it doesn't have to be that way. — Paul Krugman

by Carrie (migeru at eurotrib dot com) on Tue Apr 25th, 2006 at 03:47:03 PM EST
[ Parent ]
I was thinking about the primarily immigrant population - Hispanics, Italians, Norwegians, and Irishmen. They were ready to go to a faraway place leaving everything behind. Moreover, most of them didn't know the language. However, they were risk takers - people willing to establish a life in a new country; to work hard and try to gradually make their way in the new country. They were also individuals who were trying to get away from the government - looking for religious freedom. They were politically conservative - more positive about taking risks, than to trust the government to take care of them.  

However, the FBI is absolutely another story. The thing is that I believe that when public opinion is bomilized great results can be achieved. And I think that it is not too late to stop the FMRI from entering into practice.

by Laura on Tue Apr 25th, 2006 at 06:32:40 PM EST
[ Parent ]
You may have be thinking about "the tired, the poor, the huddled masses yearning to breathe free", but you wrote "the founders of the States", which under no stretch of imagination can refer to Hispanic, Italian, Norwegian or Irish immigrants (or maybe economic refugees: the "risk-takers" were the expatriate landed gentry from Britain who would, 150 years after the pilgrims, decide that it was better for tham to be in charge rather than having to answer politically or pay taxes to the metropolis).

A society committed to the notion that government is always bad will have bad government. And it doesn't have to be that way. — Paul Krugman
by Carrie (migeru at eurotrib dot com) on Wed Apr 26th, 2006 at 05:48:50 AM EST
[ Parent ]
Let it be so, Migeru. I apologise for the mistake I made and thank you for the information!
by Laura on Wed Apr 26th, 2006 at 07:03:58 AM EST
[ Parent ]
No need to apologize! But this exchange has made me remember the large amount of "myths" (not in the sense of falsehoods, but in the sense of historical narratives that define how Americans think of themselves) that we all (thanks to globalized cultural channels) share about the US. For instance:
  • the Pilgrims
  • the Pioneers
  • the Founding Fathers
  • 40 acres and a mule
  • the Melting Pot
  • the tired, the poor, the huddled masses yearning to breathe free
and so on...

A society committed to the notion that government is always bad will have bad government. And it doesn't have to be that way. — Paul Krugman
by Carrie (migeru at eurotrib dot com) on Wed Apr 26th, 2006 at 07:14:12 AM EST
[ Parent ]
the right way. Civil and interesting exchanges.

Intrepid Liberal Journal
by Intrepid Liberal Journal on Wed Apr 26th, 2006 at 08:09:15 AM EST
[ Parent ]
However, I hope that respect and desire for freedom will offset whatever fears nowadays democracies have.
People don't want freedom. Freedom is a scary, lonely place. People want safety, predictability, reinsurance.

People don't want freedom until they lend on the wrong end of the stick. And then, they remember.
by Francois in Paris on Mon Apr 24th, 2006 at 07:44:26 PM EST
[ Parent ]
And how would you define "the wrong end of the stick"?
by Laura on Tue Apr 25th, 2006 at 03:18:36 PM EST
[ Parent ]
Falling victim to the repressive apparatus of the state would be my guess, in this context.

A society committed to the notion that government is always bad will have bad government. And it doesn't have to be that way. — Paul Krugman
by Carrie (migeru at eurotrib dot com) on Tue Apr 25th, 2006 at 03:33:52 PM EST
[ Parent ]
If I may repeat --

This is a huge issue, affecting the foundations of the relationship between citizens and authorities of all kinds. Thank you for writing this diary.

The terminology being used, however, is terribly misleading. Here's the natural response: "Brain fingerprinting? So what. They've already got finger fingerprinting, voice-printing, DNA fingerprinting, and plain old mug shots." The important issues here are, of course, nothing like the issues raised by fingerprinting. This isn't about identifying people.

We need to use a different term:

    * "Brain scanning" would be better, but is already used to describe ordinary research.

    * "Brain spying" would be more to the point, but falsely suggests that it might be done secretly.

    * "Brain reading" (which suggests "mind reading") seems about right. Although the term somewhat exaggerates current abilities, this puts the focus where it belongs -- on future developments.

I'd be interested in seeing comments and other suggestions, but the term "brain fingerprinting" should be dumped.

Words and ideas I offer here may be used freely and without attribution.

by technopolitical on Tue Apr 25th, 2006 at 04:15:33 AM EST
How about "mind reading"?

Intrepid Liberal Journal
by Intrepid Liberal Journal on Tue Apr 25th, 2006 at 10:18:34 PM EST
[ Parent ]
I vapor locked when I replied to this comment previously. You had already suggested "Brain reading" which implies "mind reading." I think I vote for "mind reading."

It's important to monitor India's experience with this technology and how judiciously they administer it. I regret this diary wasn't recommended on Daily Kos because that would've generated needed exposure to the issue. Most people are not even aware this is happening.

Intrepid Liberal Journal

by Intrepid Liberal Journal on Tue Apr 25th, 2006 at 11:16:41 PM EST
[ Parent ]

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