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UC Law Science and Technology Journal

Abstract

The expanding use of neurotechnologies in consumer products increases the risks to human rights such as autonomy and free thought. While potentially beneficial in clinical applications, technologies such as brain implants and EEG-enabled wearable devices pose serious concerns about mental and psychological manipulation of human beings. In the US in particular, law and policy are lagging behind technical developments, thereby increasing the risks of abuse and misuse from commercial neurotechnologies. This article focuses on commercial neurotechnologies, which are distinct from medical neurotechnologies for clinical diagnoses, and seeks to guard against human rights risks to users by overcoming that regulatory gap. The article contends that harm to users’ free thought and autonomy from consumer neurotechnologies are foreseeable and known but obscured by market incentives and by the technologies’ dual, therapeutic purpose, and it argues that preemptory regulation is both necessary and supported by precedent. To that end, an analysis of precedents from institutions of governance such as the precautionary principle, moral utility, and human rights, along with current initiatives in other jurisdictions (Chile, Spain, the UN), are provided. This analysis points to possible broad and narrow approaches for minimizing the risks from neurotechnologies. Specifically, the article stipulates that the expansion of patent law based on the moral utility doctrine, in combination with enhanced enforcement by FTC and lobbying by the neurorights community, might to be the most promising approach in the U.S.

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