← Solutions with Henry Blodget
Solutions with Henry Blodget
Your Devices Are Already Tracking Your Brain Waves. Should You Be Worried?
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- [00:01]
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Interviewer / Host
What are you thinking right now? What do you know that you're not telling people or that you wouldn't voluntarily share? For all recorded history, those thoughts have been your private domain, yours to develop and share as you wish. But not anymore. Today, neurotechnology can record what you're thinking. There are devices on the market, like rings and smartwatches and wristbands and headbands that already track your brain waves and can draw insights from them. And there are lots of people in companies and institutions that want to use that information for their own purposes. So in the view of some experts, it's time to think deeply about what this means and what laws and regulations we should put in place so that your brainwaves aren't misused. Nita Farahani is a professor of law and philosophy at Duke University. She's an expert in ethical, legal, and personal implications of emerging technology, including biotech and neurotech. She's also the author of a book called the Battle for your Brain, Defending your right to Think freely in the Age of Neurotechnology. Before I read Professor Farahani's book, I thought this topic was mainly science fiction, something from a hypothetical future or Elon Musk's imagination. One of the many fascinating things I learned was the extent to which it is already happening Today. I hope you enjoy our conversation as much as I did. Thank you so much. Nita. Welcome. So you are concerned that neurotechnology is about to penetrate. Penetrate what might be described as the last bastion of privacy, namely, what's going on in our heads, what we're thinking about, our freedom of thought. And I think that when lots of people hear this, and I mentioned this to my daughters last night, they were thinking some far out future in Minority Report and others. But you're very persuasive in your book that a lot of this technology is available and operating now. So we are already starting to see the impact of this. So why don't we start by just give us a sense of where we are on this and what you mean by neurotechnology.
- [03:37]
Nita Farahani
Sure. So, first, thanks for having me. It's a pleasure to be with you. And second, with respect to your daughters, I think they're wrong. Right. They. They think about it as something that's far off into the future. And I think that's because people have a misconception that neurotechnology is just, you know, what Elon Musk is working on to implant electrodes into people's brains. Or they think of neurotechnology not in the same way that they think about a lot of other technology that they're already using. And so neurotechnology certainly includes implanted electrodes. And there have been big advances. We can talk about that. But what I really focus on in my book is everyday brain sensors embedded into devices that we already use and that we will come to increasingly use in the future. And so the best way for people to understand it is they're used to, at this point, heart rate sensors that are built into watches or weari wearing smart rings that have sensors that pick up temperature or sleep patterns or activities like that. Neurotechnology, that is consumer neurotechnology, is brain sensors that are embedded either. A lot of the technology is standalone right now, so you can buy a little forehead band, and it will have electrodes that pick up brain activity, and we'll talk about what it means to pick up brain activity in a minute. But it also is things like a watch that can pick up brain activity from what's called your peripheral nervous system. So brain activity as it goes from your brain down your arm to your wrist and then picks up your intention to swipe or type or move or brain activity that's picked up from. I'm wearing earbuds right now. So earbuds that can pick up brain activity through the ear, or you're wearing headphones with cups over your ears. And there are now already products that are on the market it that in those soft cups around the ears have electrodes that pick up brain activity. So what does it mean to pick up brain activity? It means like every time we think or talk or speak or do anything, there are neurons that are firing in our brain that give off tiny electrical discharge. And those electrical discharges happen like hundreds of thousands of, you know, times every time you do anything. And that electrical activity can be picked up by these sensors. And then thanks to advances in AI, the patterns of the electrical activity can be deciphered and decoded into how you're feeling or your intention to communicate a message or something like that. So is this on the market already? Yes. And in fact, the one thing that I talk about in my book, which is like the big moment of kind of what's going to go mass market, is a product called Control Labs that was bought by Meta and that just launched September of 2025 in Best Buys around the country, which is the Meta neural band. And so that neural band is the way people interact with the Meta smart glasses. And so you don't use like a keyboard or a mouse. You use a band that's on your wrist that picks up brain activity as it goes from your brain down your arm to your wrist and picks up your intention to type or swipe or move. And so there's already mass market market products that exist that are from, you know, the biggest tech companies that people know that are neurotechnology on the market.
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Interviewer / Host
And so as is very typical, Silicon Valley is very excited about this. Sounds great. You're free from the keyboard, you don't have to talk to your glasses, which has been a big, a big point of friction in the past. You just wave your arm around. So what's the problem with that?
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Nita Farahani
Yeah, I mean, so first we should be clear. There are huge benefits, right? I mean, so if you think about the awkwardness of interacting with a glass, you don't want a keyboard, you don't want a mouse, you don't have to talk out loud if you want to send a quick message and you're in public randomly talking out loud could, you know, put you in a mental institution rather than actually enabling you to send the text message. But to think that that data and what is being deciphered is the same as everything else we have already given freely to tech companies, I think would be a mistake on the part of the consumer. And the reason Is because up until now, when you type or you swipe or you speak out loud, you are intentionally communicating information. But what's happening with brain activity is it's not just what you intentionally choose to communicate that can now be decoded. It's increasingly just what you're thinking or feeling, Whether you're tired or awake, whether your mind is wandering or you're paying attention, whether you're happy or sad. Information that. That you might not want to share can be picked up just as much as the information you want to share. And so I really think of that as like, our final frontier of privacy. The kind of most fundamental aspect of what it means to be human is what you think and what you feel and who you choose to share that information with. And suddenly that information is something that can be decoded and deciphered when you start to wear and use neurotechnology.
- [09:06]
Interviewer / Host
And you have some very vivid examples in your book of where that might come into play. For example, at work, your boss is being a jerk. You are thinking, boy, what a jerk. But you're probably not saying that. Talk about that. Give us some other examples of where this might actually come into play for. For most of us.
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Nita Farahani
Yeah. And what I try to do in. In the book, the battle for your brain is, you know, in part because both people didn't necessarily know what was happening, but also people wouldn't necessarily believe, like, this is where we're going. I try to ground it as much in examples of what's already happening rather than where it might be used in the future. And so I'm going to give some of the examples of where it's already being used and misused, because I think that helps people really understand the stakes, even more so than how it could be misused. And so, you know, one kind of important area, and this is a little bit ironic, which is probably starting in 2010, I started to experiment with these technologies and think about, you know, kind of where were we going with it? And one kind of area that I thought would be interesting is early applications of these technologies allowed attention to be tracked, so you could tell if somebody was paying attention or their mind was wandering. And I thought, wouldn't that be interesting in the classroom setting? Like, I'm a professor, Wouldn't it be great, you know, to be able to look across the classroom and say, like, oh, that person's paying attention, or their mind is wandering? Or, you know, empower the students to have that information themselves, like, track their brain activity during the class, see when their mind is wandering and when they're paying attention and see if they can improve it over time. I even entered into some conversations from a research perspective with one of the consumer neurotech companies about whether I could run this experiment. I was teaching two sections of criminal law. Could I have one section have it and the other section not? There was no way to ethically do it for lots of reasons, and so I abandoned that. Fast forward to 2019. The Wall Street Journal breaks a story about how in classrooms in China, fifth grade students have these headsets that they're being required to wear during class. And, you know, there's pictures of it. And you see these kids with these headsets on, tracking their brain activity, where in real time, the information is being sent to the teacher in the front of the classroom. It has red, you know, orange and green lights on them. Green paying attention, Orange mind starting to wander. Red mind. The data is being sent to the not just teacher in the front of the classroom, but to the parents and even the state. Students are talking about how they've been punished based on what the, you know, kind of data is revealing. And it's very easy to quickly see how Orwellian that becomes, right? A kid who is having their brain activity monitored. And, you know, I will say, like, the data could not have been particularly good in 2019 for what was being picked up by these. But you tell a kid that their brain activity is being monitored and being sent to their parents and sent to the state, and the killing effect that that has on a child must be incredibly profound. The, you know, kind of sense of even their mind being watched. So then we look in workplaces and I think, okay, well, you know, what would happen, like, increasingly, particularly since, you know, post Covid, but, you know, kind of en heightened during COVID was so much bossware that has been implemented in the workplace. And by bossware, that's the kind of pejorative term that, you know, has been applied for the ubiquitous surveillance in the workplace, from cameras that tracking people to armbands and warehouses, tracking where people go, you know, one. One side of the warehouse to the other side of the warehouse, to, you know, instacart shoppers and others having, you know, down to the millisecond of where they are being tracked. And then you think, okay, well, what would happen if brain activity was being tracked in the workplace? And sure enough, it already is in some settings. There's a company called SmartCap, who for more than a decade has been selling this lifeband, which can be integrated into a hard hat or integr into a baseball cap or just worn on its own, tracking fatigue levels in workers. And on the one hand that's great, you know, especially if somebody who's driving or in a mine or something can see, you know, that they're starting to fall asleep. But when that data is being sent in real time to the manager and you know, promotion and hiring and firing decisions are made, or you know, just the very fact of being at work and to your point, like you're thinking, gosh, my, my boss is such a jerk, or you know, you are trying to negotiate about, you know, what your salary is going to be or your salary increase is going to be, or your work hours or anything else, having even your brain activity monitored can be deeply disconcerting, can really undermine the meaning of work. And there's more, right? I get into how it's being used in law enforcement across the world, how it's being used even in entertainment, or you know, how IKEA has run these experiments where people were buying rugs that were limited edition artist based rugs and then reselling them on ebay. So you know, IKEA decided, let's figure out if we can track and determine who really loves a rug and only let those people buy it. And you'd have to go into the IKEA store, put on a headset, have your brain activity register that you really love the rug in order to buy it, and only then could you be allowed to purchase it. Which means it's already being used in commercial settings or at perfume counters by, you know, partnerships with l'. Oreal. And there's countless examples like this, all of which is happening without any protections for the use and misuse of that data and information.
- [14:51]
Interviewer / Host
And you, you say with the IKEA example that everybody who tried it was excited, hey, cool, futuristic, sign me up. And so, and obviously in work situations, either people like feel like they have to do it or they lose their job or it's presented as fun and cool. So people are doing it with no awareness of the risks.
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Nita Farahani
Yeah, a lot of times that's how new technologies I think end up adopted is they're kind of out of context, introduced to people where they think, oh, this is novel and interesting. And so whether that's in Ikea or at a perfume counter or there are increasingly more art exhibits where you can walk into the art exhibit and then kind of co create the art by putting on a headset that tracks your brain activity, have your brain activity visualized alongside the art and that becomes part of the Exhibit. And there have been lots of studies that have been done that shown that when you encounter novel technology in these kind of, you know, emotionally satisfying situations, but decontextualized from the risks and the harms, it leads to the normalization and the acceptance of the technology without us even realizing, hey, wait, this is an entirely new frontier that's just been breached. Like, I'm giving up my brain activity, I'm giving up mental privacy without even considering it, and stopping, stopping and pausing to say, is this something I want? Is this something that's good for humanity? What are you going to do with that data? And that kind of acceptance of it can make us blind to what the risks and harms are.
- [16:23]
Interviewer / Host
And, and where is the technology in terms of actually interpreting what's happening in somebody's head? Brain waves. We have a general picture of what an EEG looks like or anything like that, but what, what does it actually tell us?
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Nita Farahani
Can you. It's a great question.
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Interviewer / Host
Could a boss say, ha, you were thinking I was a jerk. Yeah, I've got you.
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- [16:45]
Interviewer / Host
I gotta work you on another team or we'll fire you. But is it that precise?
- [16:50]
Nita Farahani
Not today. And not with like basic a few electrodes that are put on a person's head. What is far more likely is they show, you know, an image of your boss flashes up and your anger or disgust registers. And that can actually be interpreted rather than literally the word words that you're thinking. So emotional and kind of broader brain states are right now much more easily interpreted. Interestingly, if you asked scientists a year ago, most of them would have said from eeg, you're never going to be able to decode, I think that person's a jerk. And then increasingly there is data showing that thanks to advances in AI, it is possible to take those brain signals and advances in AI that not just interpret what the data means, but are able to separate out the noise that happens. Right. If you have muscle movement or twitches, all of that registers as brain activity as well. And being able to separate the noise from the signal has been hard. And AI is increasingly making that possible. And over the past year, EEG studies have shown that it is possible to even decode what, like real time words a person is thinking. That's primarily right now, intentionally communicated speech meaning, like when you're trying to communicate a word or trying to send a text message that looks a little different in your brain than kind of the passive thoughts that you have in your brain. And right now, EEG decoding of that intentionally communicated speech is becoming better and better. So I think for the most part, it's a matter of time rather than a matter of whether it is possible to take signals and translate them into, you know, kind of the real time thoughts that you're having.
- [18:38]
Interviewer / Host
And talk about law enforcement because you say it's being used around the world. Obviously you can't talk about this without thinking of the movie Minority Report where the idea was that these beings in a tank could sense when people were about to commit crimes and they would send out the police to arrest them before the crime was committed. So you save people from being murdered, and yet the future criminals go to jail. You got to think about that immediately. So. But talk about where we are in law enforcement now with this.
- [19:09]
Nita Farahani
Yeah, so I, you know, there's, there's both the use of it to be able to decode what a criminal is thinking versus cognitive warfare. And we'll sort of set cognitive warfare aside for a moment and look at it. You know, that's kind of the weaponization by law enforcement or militaries versus using it by law enforcement to interrogate a suspect. So, you know, if, if we think about Minority Report, that wasn't even interrogation of a suspect. That was, you know, trying to predict future crimes. And we're not there in that. Neurotechnology isn't currently being used for predicting future crimes. Although I will say there is a lot of research that looks at psychopaths have a different set of brain structures and function like their brains look a little bit different. And it's possible to detect some of that as early as 5 years old. And so you can imagine a world in which there is some of that prediction that's happening. I'm not aware of that happening in any law enforcement right now. What is happening and what has happened across many law enforcement agencies worldwide is the use of some of the preconscious signals in your brain that happen. And what I mean by that is before you're consciously aware of something, there is a signal in your brain that happens really milliseconds before your conscious awareness called the P300 signal. So if I show you an image that you recognize, there is this little signal of recognition in your brain before you're even consciously aware of recognizing it. So you can't control your reaction to that information. And what law enforcement have used that for is to require a person to wear an EEG headset or something similar that picks up brain activity, show them images or read them statements that they should not have recognition of and then track their brain activity to see whether or not their brain signals recognition and this. There have been quite a few cases like this in India using something called bios, which is brain oscillation signals. So again, it's an electrical signal that's looking at the kind of response to recognition, even convictions for murderers and others claiming that, you know, the kind of brain told on the person. In the US there is a criminal defendant who voluntarily submitted to this and then based on what his brain activity revealed, he confessed to the crime. And you know, it's been used and reportedly used in many countries throughout the world by law enforcement to subject a person to this kind of silent interrogation. And some of my early work and what I get into in the book as well is thinking about, you know, what does in the US the right against self incrimination include? Does it include a right to not have your brain tell on you if you're not testifying against yourself? Up until now we've really protected testimonial evidence that is you can't be forced to testify against yourself. But the reasons are like you can't be forced to do that because that puts you into this like trilemma of you either have to lie and perjure yourself or confess and you know, kind of give up yourself or remain silent and potentially incriminate yourself. And so given that those, that rationale doesn't really apply if you're interrogating a person's brain over which they have no conscious control. And is that more like the physical evidence which can be used from your body or is it more like the spoken evidence? We don't know. So it's unclear that any of our legal protections really protect a person against that kind of interrogation. I think right now scientific reliability is what would keep it out of the courtroom. In that, you know, if it's, if, if the science doesn't prove that a particular kind of scientific data is reliable, then based on the unreliability it's kept out of the courtroom. But if we get past that right, where it does become reliable, it's unclear if constitutional protections would actually safeguard you do against that kind of interrogation.
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Interviewer / Host
And, and where is it now in terms of scientifically provable reliability? Because we've had lie detector tests.
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Nita Farahani
The biggest problem isn't the P300 signal. The biggest problem is the probe itself that is showing you evidence and having that truly be something that you recognize because of some like the inference that you are guilty versus you recognize it because it's similar. Like suppose you were shown a knife that was used in the crime, and your brain signals recognition. Is it because it's similar to your grandmother's knife that she used to, you know, used to carve the turkey on Thanksgiving, or is it because you recognize it from the crime scene? It's unclear. Right. And so the. The art form of the probe is what makes it deeply unreliable at this point and very difficult to replicate.
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Interviewer / Host
And given that you're a professor of both law and philosophy, which is a marvelous group of skills to bring to this question with things like that. If the technology were reliable. Not that, yes, you could certainly argue that, no, that's a knife from my childhood or what have you. Do you feel that there is a place for. For it in legal analysis and criminal trials and that sort of thing?
- [24:48]
Nita Farahani
Maybe. You know, I think the reasons that we don't want a person to be forced to be used as evidence and to testify against themselves is oftentimes to check the power of the government and the state. And I think those reasons would still continue to exist. We would still want to have that kind of check on power by the government. But here's an alternative. Already, the passive collection of data from the body has been used in criminal cases. So, for example, when a person wears a Fitbit or a smartwatch and their alibi is they were asleep at the time that the crime was committed, and then the law enforcement is able to get that evidence from the company and show, actually the Fitbit shows that they were physically active, not asleep at the time that the crime was committed. Um, or, you know, their heart rate data shows that they were asleep from their Apple Watch or something like that during the time the crime was committed. So it corroborates their alibi. Now imagine that people start to use neurotechnology more frequently as part of their everyday lives. Like, already, there are a number of devices that people wear to sleep that track their sleep using brain activity or even modulate their sleep. So you can have like, an AI device that picks up brain activity and then like, as you start to wake up a little, plays a little music to put you back to sleep so that your brain activity is kept within a range. Would the passive collection of brain activity data be something that has a role in law enforcement? Probably because there's no coercion in collecting that data. Right. That becomes a lot like corroborative evidence. Just like your Fitbit data and your heart rate data, you haven't been coerced to wear it, you've chosen to wear it. That data could be incredibly useful to tell us what's happening with your brain activity at the time that a crime was committed. So I think that's where we'll see a role for a lot of this data is first from that kind of passive voluntary use of neurotechnology, which is collected by law enforcement through subpoenas to the companies rather than the interrogation of minds in a police agency.
- [27:08]
Interviewer / Host
And philosophically, is it in society's best interest to enable law enforcement enforcement to have access to that and also to an individual? Let's say they are asleep and it is true to be able to prove it that way. Is it? Because what I thought of immediately when I was reading this is DNA evidence was very controversial in the beginning. Now it seems like it's the starting point. It's totally accepted in almost any investigation. And is this just another step that would get us to be able to answer questions definitively where there currently is reasonable doubt or at least some. Some doubt?
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Nita Farahani
Yeah. I think philosophically the question we have to ask is, is there something different about government access of brain activity data? And you know, I think if you're using it for a very limited purpose, was the person moving or were they asleep? Maybe we could think there is a philosophical role for that. But breaches a barrier between your mind and the government. It starts to say there are certain instances where it's okay for neural surveill the government to be permissible and there are certain instances where they aren't. And I tend to think that like once you go past a bright line, it becomes a slippery slope for how much neural surveillance becomes permissible. And I really think that the mind is like the final sanctuary. It's the place that is the best possible check on government power and government misuse. And to really keep a bright line to say neural surveillance will never be permissible, that it's never okay to actually reach into a person's mind is the only way that we can really have any kind of check on tyranny in the long term. That's the only way that you can maintain the right balance between individual rights and sovereignty and autonomy and government power. So you're about to make a trade based on a friend's text, but which UD listen to is it we could buy a house in Tulum, get optioning those options, we could lose everything. Or let's do a little research, get your head in the trade and make the investment decision that's right for you. Learn more@finra.org TradeSmart this is pro linebacker.
- [29:42]
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- [30:11]
Version History Host
For most of the history of television, if you missed a show, you just missed it. It was over, it was, was gone. But then this little company called TiVo came along and gave people superpowers. You could pause live television, you could rewind it, you could save it and watch it later. It was incredible. And the people who had it could not stop talking about it. This week on Version History, a new chat show about old technology, we talk about the history of TiVo and how it is that a company whose products actually no one ever really had or used became one of the most iconic stories in tech. All that on Version History. Wherever you get podcasts.
- [30:50]
Interviewer / Host
I assume that the way China was thinking, the Chinese school that you referred to earlier was thinking about this is it's going to help the children concentrate. They don't, they don't want their minds to wander. This will alert them to that and their parents can say, well, you, we should have been focusing more carefully. So are there areas where that, where there is a bright line there? Because you obviously you talk about at work how people feel like they have to do it to keep their job, even though they might not want to. So is there a bright line there?
- [31:20]
Nita Farahani
Yeah, I mean I in general think nobody else should have access to your brain activity data. You know, there's a difference and a fair question about whether or not you could consent to it. But I think in settings like education it should be something that's available to students. Like if it is helpful to a student to be able to track their brain activity and to be able to see when they are paying attention or their mind is wandering, I don't have any problem with. And in fact I think they should be able to have access to that. I think there's a right to self access and that, you know, is kind of core to self determination is not just the right to, but the right from interference. But should a teacher be able to say, okay everybody, today we're going to be tracking brain activity and anybody whose mind is wandering is, you know, going to be punished? No, I think that that is fundamentally problematic and in fact there's lots of studies that show that mind wandering is good, that that's where you are actually able to be the most productive. The true insights at work come from that kind of mind wandering rather than the periods of sustained focus in the workplace. I think it's deeply problematic. And it's interesting because one of the appeals that I really make in the book is to the staunch libertarian, because the staunch libert and would believe that freedom of contract would be adequate in the workplace to be able to address the kind of misuses of technology and technological surveillance. And so I include a scenario in the book that really is meant to speak to that argument and to say, okay, so freedom of contract is the kind of fundamental assumption of why it's okay for that kind of surveillance to happen. What happens when your boss calls you up and says, like, hey, guess what? You did really well last year. Last year, given that, I'm delighted to be able to offer you a 5% raise this year you were expecting a 10% raise. And so you push back and you say, thanks so much, but what we had talked about was a 10% raise. That's what you say in a negotiation. But your brain activity reveals that when they said you got the 5% raise, you're delighted, you're thrilled that you get a raise at all. And they can see that because they're tracking your brain activity, because they have access to the work issued ear buds that pick up your brain activity. And you know, when you say, actually I was expecting 10%, you show significant fear in your brain activity. They suddenly have massively asymmetrical data in the negotiation, which frustrates the fundamental principle of freedom of contract. And so when freedom of contract cannot exist in a setting in which there's asymmetrical access to neural data data in the workplace, even the staunchest libertarian recognizes, okay, maybe not like, maybe it's not okay to have this be an ath. Like maybe freedom of contract doesn't cure having brain activity data tracked in the workplace.
- [34:23]
Interviewer / Host
And how about another workplace situation you talk about in the book? I think again, in China, train operators forced to wear helmets that basically monitor, okay, you're getting a little sleepy here or what have you. And just to one would imagine that truck drivers or plane pilots or what have you, that might make sense. You might want your, your pilot to be very alert. And there are always these cases where the pilots are both asleep and the plane flies an hour past the destination before the control tower can wake them up. And, and that kind of thing. So we do already surveil a little bit, certainly in. In a cockpit where everything is recorded. So is that. Would that be okay?
- [35:08]
Nita Farahani
Yeah, I mean, so I try to pose kind of scenarios like that to say maybe there are some limited intrusions that we're okay with. And this is in part because when we think about privacy, privacy isn't an absolute right. There are societal interests at stake, and there are individual interests at stake. And how do we find that right? Balance. And so, you know, if we come back to SmartCap for a moment, which is a little bit different than the China example that you were talking about that I go through in the book, one of the things SmartCap does that's interesting is they keep the raw data on the device. Now, what do I mean by raw data? So there's the brain activity, like the electrical recordings itself, and then there's the interpretation, and there's lots of interpretations you could make from that brain activity data, because in your mind, many things are happening at once. One inference you can draw is, is the person awake? Are they tired? Where are they on that spectrum? So SmartCap takes the raw data and they keep it on the device. They don't share that with the employer. The only thing that shared is the very narrow inference of where you are on a score from one to five, from wide awake to falling asleep. And the question is, if you're a commercial truck driver, is your interest in your mental privacy with respect to that one metric, are you wide awake or are you falling asleep stronger than the societal interest of not having you fall asleep at the wheel and cause major accidents and deaths on the road? And I think we would probably, for the most part, agree that that one narrow inference of a score of 1 to 5, that the mental privacy interest that the truck driver has is probably weaker than the societal interest of being safe on the road. And then the question becomes, how do you put it into place in a way that safeguards the person? And so you would do things like you would have data minimization, you would keep the raw data on the device, and the only thing that could ever leave the device is the, you know, specific inference. Ra than being able to mine that data for what the person was thinking or whether or not they hated their boss or anything else that you could kind of derive from that. But then it becomes tricky. It kind of goes back to what I was talking about earlier, which is the slippery slope of once we agree that a certain intrusion into mental privacy is okay, how do we draw bright lines to make sure that only Those certain intrusions are ever permitted.
- [37:33]
Interviewer / Host
Fascinating. And so we're getting into your solutions to this. So what are those solutions?
- [37:41]
Nita Farahani
Yeah, first and most importantly, I think is to start to recognize that neurotechnology in many ways is a lens to a much bigger problem in the digital age. It's not just neurotechnology that we should be worrying about, it's mental privacy that we should be worried about. It's not just, you know, your freedom to think, it's more broadly freedom of thought, the right against manipulation and interception and punishment for your thoughts. Which means we go then from a solution that's technology focused to a solution that's really rights focused. And we say, okay, this helps us put like the finest lens and point on the problem. But the problem is one that fundamentally is about self determination over our brain and mental experiences, and that is really understanding that our concept of liberty in the digital age needs to really focus on cognitive liberty. And cognitive liberty, as I define it, is both a right to access and change our brains if we should choose to do so, but also a right from interference with our mental privacy and freedom of thought. And so from a kind of starting place, solution wise is to say, okay, let's figure out what the norm is that can guide us to the laws and regulations and design that we need. And we have the Universal Declaration of Human Rights, which clearly outlines a set of rights that are applicable here. Right is the right to self determination. That's primarily been understood as a collective and political right. And I think in the modern age, we need to recognize the individual right to self determination, which includes the right to access and to change our brains if we should choose to do so. Like, if we want to use neurotechnology and other technologies to enhance and improve ourselves, we should be able to do so and have that right. But then, you know, all these other contexts that we've been talking about are, are particularly risky when it comes to privacy. And here there's a right, an international human right to privacy. And we need to recognize that mental privacy is part of that. There's never been an explicit recognition that the right to privacy includes a right to mental privacy. And we just need to make that explicit as part of that existing right, which would include a right against interference with even things like your mental states, your drowsiness, all of those types of things, and interference, interception of that. But privacy, as I said, is a relative right. And so we have to understand that, you know, there's a lot included within mental privacy, but it's going to sometimes give way to interests of society. And then the last is freedom of thought. So freedom of thought is an absolute human right. And that means there's never an encroachment upon it that is permissible. And that we have to understand in the modern age is not just about religious belief, which is how it's traditionally been protected, but instead also includes a right against interference with manipulation and punishment for our thoughts. Okay, so that's a great starting place. But as we know, human rights are only as good as they're enforced. And so what that gives us is a guiding set of principles to what needs to happen within countries and within the United States. That means that we need to recognize that there needs to be, you know, particular safeguards in workplaces and in education and in government use and misuse of mental states and mental data and commercial misuse. Because increasingly, you know, as you said, Silicon Valley is really excited about this. Well, part of the reason they're really excited about it is if you look at the way in which advertisements have been increasingly taking our personal data to be able to interpret what we think or feel at any given time, and then try to shape and change that by serving up very individualized advertisements, it would be really concerning if we create a closed loop where you're using your meta glasses together with your neural band, it's picking up how you're reacting to advertisements, and then in real time changing those advertisements to try to manipulate your mental states. And so we need to put into place safeguards that respect cognitive liberty. And so if we want to take freedom of thought and mental privacy seriously, that's gonna guide us to adopting specific safeguards against the misuse of ment mental states across these different contexts in society. And I think the best way to do that is to try to adopt a risk based regulation that recognizes certain contexts as being high risk and having more stringent protections against use of mental state data in those contexts. And then, you know, entertainment and self use, those should be the kind of least regulated areas other than protecting us against our data being harvested and misused against, against us.
- [42:33]
Interviewer / Host
And are there examples of countries that are doing this and doing it well in your view?
- [42:39]
Nita Farahani
Well, those are two different questions really. Which is doing it versus doing it well. Right. So I mean, certainly there have been attempts already at doing this. Chile has passed some neuro rights legislation which is focused on mental integrity. UNESCO recently adopted a global standard with respect to neurotechnology. And I was part of the process of developing those standards. And I think it, it outlines Very clearly and quite well. What the what like it gives a guidebook for countries to be able to then put into place specific practices and protections across different contexts. In the US there have been a few laws that have been passed. Those laws have primarily focused on the protection of neural data by treating them as a sensitive category of data. I think there's, you know, it's, it's, it shows admirable effort by the US to try to get ahead of the problem, but it gets it wrong because I think sensitive data, data like categorical protections don't actually protect against the misuse of the data. They just try to put limits a very narrowly defined category of data. So it shows good effort, you know, A for effort, F for implementation. And I think we'll get better at it. There was recently by Senator Schumer, legislation that was introduced into Congress called the MIND Act. It directs the FTC to investigate the issue with really specific guidelines on how to do so and to identify gaps. I think that would be a great start and that it would be wonderful if Congress chose to move in that direction. It doesn't move faster than the technology itself. What it really does is open up a federal study on how to get it right. And I think that would be a really promising approach to try to find the right balance between enabling innovation in this space because of the promise, especially the health based promises that it offers, while trying to recognize the unique risks that it poses to mental privacy.
- [44:43]
Interviewer / Host
And I, I think the Silicon Valley argument would be, whoa, whoa, whoa, like this is totally new. China's going to do it if we don't. We've got to be able to experiment. We've got laws that already protect against this. Consumers aren't stupid. If a company's not using their information in a responsible way, they can switch and we need to get out in front of this as opposed to hobbling ourselves. And from what you've just described, it's actually not to do. You can think, yes, let's regulate this in a sensible way. And it turns out it's incredibly complicated. So yeah, you, what do you think of the Silicon Valley argument?
- [45:21]
Nita Farahani
So, you know, one thing that I think is promising is that you increasingly see people in Silicon Valley who are coming to the table to try to develop industry standards around it. They recognize that as a new category of technology, that if they don't develop consumer trust, that it's likely to fail and that the result is that I think there's starting to be movement out of Silicon Valley of trying to coalesce around what might standards around mental privacy look like and how might they actually give up something and agree to some of it in order to enable it? What does transparency look like with respect to data practices and other kinds of use? At the same time, you also start to see some pretty concerning moves toward early attempts to commodify brain data companies that are already starting to try to develop what are called brain foundation models, which is buying brain data from lots of different companies in order to build similar models like a like a ChatGPT, but for the brain instead. And you know, the fact that that's already happening says we need to actually bring in not just industry agreement but external pressure. The argument of like China is going to do this anyway and so therefore we shouldn't put any restrictions on it seems to hold a lot of sway with this administration and that might end up being swept up in like the recent executive order that tries to punish for adopting AI legislation. You might see something similar when it comes to neurotechnology because there is a strong national security interest in advancing neurotechnology and certainly in not having China go faster or better than the US does. So I think it's going to be a landscape to watch. Silicon Valley has had a powerful lobby and voice in the current administration on limiting regulation on AI. They might have a similarly powerful set of arguments to make to the administration about brain computer intervention interface in neurotechnology as well.
- [47:22]
YourRichBFF
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- [48:02]
Interviewer / Host
YourRichBFF what is your view of the regulation, or lack thereof of AI and going back to social media? A lot of people will say in promoting additional regulation on anything new, they'll say look what happened in social media. It's a disaster and it's because Congress didn't do anything. As you look back on that, was there something that Congress could have done 10 years ago that would have helped a lot or did we actually have to go through the experiment as a society to realize like, you know what, unfettered access to phones and social media in school, everything else actually isn't great for kids and we all have screen addictions and everything else. Is that something we have to learn learn that Congress actually couldn't ahead of time figure out?
- [48:49]
Nita Farahani
So you know, it's, I don't know is the short answer on social media, which is I think a lot of it we couldn't have predicted at the time. Like the profound nature of the mental health impacts or the addiction would have been difficult to predict at the time. That being said, the practices that were implemented where companies started to optimize their products to drive, increase engagement and when they started to get feedback, seeing that there was addiction that was emerging and then implementing design choices to foster that addiction that could have been predicted by the companies, but maybe not from external actors. And so what that raises is this question of, you know, when, when we look at like the FDA for drugs, if you market a drug, you have to go through extensive safety and efficacy testing before you market it and then you have post market surveillance requirements and of adverse events. Could we do something similar where tech industry has asymmetrical access to information about adverse events and they have a duty to engage in adverse event reporting as that evidence becomes available. And failure to do so would subject them to liability, like failure to warn for product liability defects that emerge. I think increasing the burden on tech companies to have to actually report out the kind of data that they're getting would be valuable. And that wouldn't necessarily require ex ante regulation. Right? It would be ex ante regulation saying you have a duty to report, but not you can't market until you go through extensive safety and efficacy testing. And that kind of production burden that we could put on the companies would both require them to monitor their products and the effects of their products as they're marketed out into the world and then have liability and face liability for failure to warn as that kind of information emerges. That I think think would be a good kind of compromise, which is you still get to market your products, but you actually have a duty to monitor what the effects of those products are. Because a lot of times we don't know in advance, like we won't know fully. And I don't think that companies fully understood what the implications of social media were going to be for kids at the time that they were marketed, but they definitely had access to data a lot sooner than the rest of us did and chose not only to not report out that data, but to exploit what they were finding in order to further exacerbate those data harms.
- [51:22]
Interviewer / Host
And are there simple examples in the past of Congress stepping in ahead of time and coming up with a good framework for regulating a new industry that's developing very rapidly?
- [51:34]
Nita Farahani
Well, I mean, we see that with drugs and devices we have an entire framework for how we do that. And you know, the, like you, you can market a product that is substantially similar to another product with just pre market notification to the FDA without having to go through extensive safety and efficacy testing, but you have a duty to monitor it after it's already out on the marketplace. And so, you know, I think it, it provides a really nice framework to say, okay, if this is what a, you know, if, if you're marketing a neurotechnology product and it's substantially similar to another product, you can market it simply by providing notification to whatever the equivalent of the FDA would be in this context. But you have an ongoing duty. And that ongoing duty is clearly articulated within a regulatory framework. And so I think we have the playbook already. We've seen successfully in the areas of drugs and devices. We've just given free reign to technology. You know, if you look at every other kind of product, it falls under a product liability framework. There is that duty to actually investigate and duty to warn for every other product that's out there. We just haven't held technology to any of the standards that we've held any other product we've ever marketed and enabled to be marketed in the US and why not? I mean, that's your, your, your guess is as good as mine.
- [52:55]
YourRichBFF
Right.
- [52:55]
Interviewer / Host
It's interesting because other industries have huge lobbying arms too.
- [52:59]
Nita Farahani
Yeah, I mean, you know, there's, there's been a lot of confusion about, you know, the First Amendment limitations and Section 230 limitations and protections that are provided. So you know, I think part of it is we need to have a better resolution about what we think of as speech versus not speech when it comes to software and services. And then second, we need at section 230 and say, does that protection need to continue onward? Is that really serving in the best interest of the public or are there limitations that we wanted to put into place into the section 230 protections that are given to tech companies and platforms?
- [53:36]
Interviewer / Host
And then lastly, I mean, first of all, thank you for your work on this. Fascinating. And it's fascinating to talk to you both as a philosopher and a law professor on this.
- [53:43]
Nita Farahani
Thank you.
- [53:45]
Interviewer / Host
Any guidance for consumers at this point as we wade into this and let's assume that Congress probably won't act this afternoon. So what should we opt into? What should we not? Should we worry about our fitness bands collecting brain data and that kind of thing?
- [54:02]
Nita Farahani
I mean, I think the simplest advice that I have for people is to start to recognize that cognitive autonomy is really what's at stake in the digital age. And there are simple practices that we can put into place to start to regain some cognitive autonomy. Like here's one, you know, I don't sleep with my phone in my bedroom anymore. My phone is in the kitchen and I have an alarm clock in my bedroom that wakes me up. And I spend when I wake up in the morning, like I first go to the bathroom before I ever get on a device. A lot of people don't do that anymore. And why is that important? Because one of the things that are starting to erode in like human autonomy is basic mind, body connection, which turns out to be fundamental to be able to sense, like when are you being manipulated, when is your mind actually, you know, being messed with in a way, and to be able to start to reconnect in the morning with just really simple cognitive autonomy practices like go to the bathroom, take a few minutes, maybe have your espresso before you reach for a phone and a device starts to recenter you and your body. And then you can make better judgment calls like, do you really want to have smart sensors for earbuds that pick up your brain activity or do you not? And if you do, are there ways that you can limit it? Or can you choose between companies that the company that promises to keep your data private and not sell it to third parties versus the product that doesn't. When your employer offers you work issued earbuds that track your brain activity, can you politely decline? And if you can't politely decline, can you make sure that you leave them at the workplace rather than wear them home? Because a lot of times what happens is, you know, your workplace issues a phone or issues technology and then you use that for, for all of your activities, you use it when you go home, you listen to music with the earbuds going home. Which means that the data that's being collected by your employer can continue to be collected even when you're not at work. And so start to put into place some boundaries between technology issued by your employer. Leave it at work, don't take it home with you so that it's not.
- [56:15]
Interviewer / Host
Tracking you when you leave the workplace and your employees. Your advice on what sounds like phone and screen hygiene sounds very much in sync with a lot of other experts out there who are all sort of collectively realizing after 10 years or 15 years what we've done to ourselves with these devices. But let me ask you, as a parent, given that we don't have landline telephones anymore, if your phone is in the kitchen, do you worry that something is going to happen in the middle of the night that you need to respond to or would like to be alerted about?
- [56:46]
Nita Farahani
Well, that's a great question, and I do worry about that, largely for I have an older father and I worry about that. My kids are in the house. They're young enough. They're 6 and 10. They're within arm's length. I'm not worried that if something happens that I can't get to them. And if I needed to call 911, then I guess I'm going to have to go to the kitchen and grab the phone in order to do so. So I, I have chosen to have that, you know, boundary between what I need. Otherwise, I don't worry about anybody breaking into my home such that I need to, like, get to my phone. And that's fortunate that I feel that kind of security. But I guess if all else fails, my husband doesn't sleep with his phone in the kitchen, so he can make that call.
- [57:37]
Interviewer / Host
All right. Professor Farahani, thank you so much for this and for the book. It's incredibly fascinating to talk to you, and I wish you all the best.
- [57:43]
Nita Farahani
We're grateful to you. Thanks so much. Thank you for having me.