Technological innovations are often at odds with the privacy of the society in which they are implemented; just examine the most recent litany of cases including the Facebook/Cambridge Analytica scandal, Carpenter v. United States, Apple’s (non-)decryption of the San Bernandino shooter’s iPhone, and NSA monitoring. Supreme Court Justices recognized “the right to be let alone” when the camera was being developed, noting that “recent inventions… call attention to the next step which must be taken for the protection of the person.” But the camera was just “the next big thing,” illustrating the true history of privacy as a defensive one when confronted with new technologies. Whether it be cameras, neuroimaging, or neuromodulation, technology creates nuanced ways of imperiling private information and behavior. Privacy is not a mantra of the modern zeitgeist, but rather the mantra of every zeitgeist – and technology is the Trojan horse re-inventing itself over and over.

Advances in neuroimaging and neuromodulation have revolutionized the ability to access, assess, and affect the mind. Neuroimaging can assess structural and functional aspects of the brain to read the mind, and has already been used to determine competency to stand trial, adjudicate the capacity of contract parties, provide criminal defense of sexual offenders or insanity pleas, mitigate sentencing, and (dis)prove social security disability fraud. The most discussed use has been for lie-detection in deposing witnesses. Supreme Court Justice Sotomayor recently called for mitigating neuroscientific evidence of a death penalty defendant. Neuromodulation to mind-manipulate has an egregious history in the U.S. legal system, with court-ordered psychosurgery ordered to control the insane, subdue minorities, and/or alter sexual preference. The recent resurgence in psychosurgery and highly-targeted psychotropics further fodders concern. When medical technologies are transitioned from research bench to legal bench, they circumvent and enhance the concerns of (mental) privacy and consent that are vindicated in the clinic, but are sometimes obfuscated in the courtroom.

Several ethical principles and theories – including autonomy, narrative ethics, pluralism, and sentimentalism – provide substantive bases for a fundamental right to mental privacy. The ‘spirit’ of privacy undoubtedly permeates the U.S. Constitution, and has been extended through an expansive judicial privacy penumbra. Yet, existing international and federal laws, judicial decisions, and doctrines are inadequately prepared for the transfer of neurotechnology from clinic to courtroom, and to adjudicate the accompanying mental privacy threats. Legal insufficiencies, case examples, potential danger zones, and prospective solutions are explored in relation to mind-brain theory, erroneous inferential claims re the “hard problem of neuroscience,” and the right to mental privacy.