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In response to rapid advancements in brainwave research that reveals personal information that could both benefit public security and threaten civil liberties, a freshly published committee report from the Association of the Bar of the City of New York asks the question, “Are Your Thoughts Your Own?” Subtitled “‘Neuroprivacy’ and the Legal Implications of Brain Imaging,” the 24-page report is meant as a call to action in light of existing and future developments in the scientific detection of subliminal preferences, hidden knowledge and “bad thoughts” some might say could predict dangerous behavior. Current methods of brain imaging technology are used principally in medical and consumer research and criminal investigation. The technology provides a means of observing and codifying cerebral chemical changes that occur when the brain responds to various stimuli. While much research to date has been conducted for benign or socially useful purposes, there is an “extraordinary” amount of information now gathered by corporate marketers through the growing use of focus groups, according to one of the report’s authors. “The general public is not terribly aware of what the information can be used for, and there aren’t many protections,” said Joan Peters, a non-practicing attorney who is executive director of the National Aphasia Society. “Maybe [marketers] are looking for what you might think the difference is between Coke and Pepsi, but there is also stuff along the lines of, ‘What do you think about your boss?’” She added, “There are a whole lot of different types of information that can theoretically be derived from these exams or studies. It may not be what you think you’re answering.” Andrew Mandell, chairman of the city bar’s Committee on Science and Law and an assistant deputy commissioner at the New York City Human Resources Administration, said, “Our goal is for legislators and the legal community to ponder these issues and think about steps that may need to be taken in view of the civil liberties implications.” The report, noted Mandell, former general counsel to the city’s Department of Mental Health, does not advocate a particular viewpoint. “The legal system doesn’t always keep up with technology,” said Stephanie R. Mann, a Westchester County pediatric neurosurgeon for more than 20 years, now an associate attorney involved in drug and medical device litigation for a large Manhattan firm she preferred to remain unnamed. “There’s an old saying: anything the mind can conceive, man can achieve. So all these scientific and pseudo-scientific techniques being talked about may indeed come to pass,” she said. Which leads to the report’s central questions: � What information is being gathered? � Who has access to it? � How will the information be used? � What rights do individuals have to their private thoughts? The report suggests:
[W]here prediction of a person’s future behavior is necessary to protect society from dangerous conduct, such as in civil and criminal commitment cases involving mentally ill persons and sexual predators, and criminal investigations and counter-terrorism, the legislature should weigh whether the state’s exercise of its police power outweighs the individual’s privacy interests. New laws may be necessary. … [I]n the research field, new laws should be passed providing for … confidentiality.

The report devotes special attention to so-called “brain fingerprinting,” a new development enabling technicians to make use of a cerebral chemical reaction known as MERMER, an acronym for “Memory and Encoding Related Multifaceted Electroencepholagraphic Response.” Subjects believed to be familiar with a crime scene, for instance, produce MERMER patterns when presented with subtle words or pictures. No questions need be asked, directly or obliquely. There is little by way of case law on the issue of such technology, which was developed by Seattle-based Brain Fingerprinting Laboratories. In a criminal matter that reached the Iowa Supreme Court — Harrington v. Iowa, No. 01-0653 — the MERMER technology was seen as valid, despite being found inconclusive at trial. In New York and other states, the city bar report stated, it remains to be seen how courts will rule on the admissibility of such tests. Until then, the report provides an example of the opposing effects of widespread brain fingerprinting — a useful police tool versus a privacy threat: Brain fingerprinting technology has the potential for other applications, including the detection of deception in the context of counter-terrorism. … Brain Fingerprinting Laboratories claims to be able to answer questions such as ‘Who has participated in terrorist acts, directly or indirectly?’ or ‘Who is a trained terrorist with the potential to commit future terrorist acts?’ If these technologies are perfected, it is possible that such brain scans might be done without the need to ask permission while persons are waiting to enter the country at U.S. Customs. Apart from the report’s conclusions, Peters predicted a potential new practice area to address brain imaging — “a cross between health law and privacy law,” as she put it. At the least, said Mann, “It would be an interesting concept to apply ethical guidelines to an active law practice, say in intellectual protection or patents or, to a lesser extent, product liability.” In addition to Mann, Peters and Mandell, the city bar report was written by Christian Bleiweiss, counsel for Siemens AG of Munich, Germany, and Catherine M. Purdon, formerly with Sullivan & Cromwell and now an associate at the Boston firm Goodwin Procter. The report can be downloaded from the bar group’s Web site.

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