Mindreading, Intent and Law
posted by Dave Hoffman
Well, this is cool, or terrifying, depending on whether you sometimes have evil thoughts. The Guardian (UK) reports that:
A team of world-leading neuroscientists has developed a powerful technique that allows them to look deep inside a person’s brain and read their intentions before they act.The research breaks controversial new ground in scientists’ ability to probe people’s minds and eavesdrop on their thoughts, and raises serious ethical issues over how brain-reading technology may be used in the future.
The team used high-resolution brain scans to identify patterns of activity before translating them into meaningful thoughts, revealing what a person planned to do in the near future. It is the first time scientists have succeeded in reading intentions in this way.
This sounds somewhat more advanced that the actual research results, which involved addition:
During the study, the researchers asked volunteers to decide whether to add or subtract two numbers they were later shown on a screen.Before the numbers flashed up, they were given a brain scan using a technique called functional magnetic imaging resonance. The researchers then used a software that had been designed to spot subtle differences in brain activity to predict the person’s intentions with 70% accuracy.
The study revealed signatures of activity in a marble-sized part of the brain called the medial prefrontal cortex that changed when a person intended to add the numbers or subtract them.
Well, it isn’t the same as intent to commit a crime, but a slippery slope beckons.
In my private law fields, mens rea and the non-completed unlawful act aren’t particularly important modes of legal regulation. (We don’t punish attempted securities fraud civilly, or disloyal thoughts about one’s company. Indeed, the role of intent in civil corporate regulation is, I think a pretty underdeveloped field of study.) So, I’m sure I’m more sanguine than I ought to be about the promise of fMRI research. All things equal, wouldn’t it be a better world were we able to determine evil actions before the fact (to be able to find the likely recidivist, or those tempted to mis-account for revenue, for example). There are serious objections – some which the good folks at the Situationist Blog might develop further – but it doesn’t strike me that there are obvious legal objections to the use of neuro-imaging to provide evidence of intent, if the science develops is useful ways.
It is worth noting that between this story and today’s Wall Street Journal piece on regeneration of body parts using cells harvested from the large intestine, it feels like tomorrow’s paper should have brought news of a breakthrough in faster-than-light travel. No such luck. But we seemed to have nailed down why spikes form in ice cubes, which is a good second best.
February 13, 2007 at 12:01 am
Posted in: Behavioral Law and Economics
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Responses (4)
Rick Garnett - February 13, 2007 at 9:46 am
I’m not as up-to-speed as I’d like to be on the state of cognitive neuroscience, but it strikes me that — as Dave suggests — this article is overreading, considerably, the research results here. With respect to the described experiment, at least, it does not seem to me that from (a) an ability to predict, based on fMRI results, which of two presented options a person will choose we have (b) a general ability “to look deep inside a person’s brain and read their intentions before they act.”
Patrick S. O'Donnell - February 13, 2007 at 10:05 am
I would implore all readers to read two works that suggest these claims are symptomatic of widespread philosophical confusion in cognitive science and neuroscience and thus are (apart from being yet another instance of scientism), to put it mildly, rather extravagant and implausible:
Sunny Y. Auyang, Mind in Everyday Life and Cognitive Science (Cambridge, MA: MIT Press, 2000) and M.R. Bennett and P.M.S. Hacker, Philosophical Foundations of Neuroscience (Malden, MA: Blackwell, 2003).
See too the comments and titles referenced in the post at the Situationist on Steven Pinker:
http://thesituationist.wordpress.com/2007/01/30/time-changes-mind/#comments
Daniel Goldberg - February 13, 2007 at 4:11 pm
I’d echo Rick’s comments, and add that some of the claims advanced by some fMRI proponents as to their legal, ethical, and policy implications are often either overstated or even simply erroneous. Too many do not understand the significance of neural correlates as correlates, rather than the actual phenomena being consider (fMRI measures, among other things, blood oxygenation levels, which is not literally equivalent to the experience of consciousness, for example).
There’s a lot of good discussion of this on the Neuroethics & Law Blog, and I’m personally hoping to spend some time discussing fMRI and pain in my dissertation.
DH Marks, MD - March 18, 2007 at 1:01 am
Although two companies are commonly referred to in trying to commercialize functional MR for interrogation – NoLieMRI and Cephos Corp, both use rather artificial questioning structures and limit their work to yes/no types of questioning. To effectively extract intelligence, a combination of scanning must be used, to collect truth/deception signatures, but to also look for recognition of faces, objects and places, emotional states, and underlying structural integrity of the brain. Cognitive Engineering, LLC www. Cognitive-Eng.org is employing this more robust approach, with application envisioned beyond criminal investigation , to include security investigations, pre-employment screening, national security, occupational suitability and effective mind reading protocols. Functional MR can be expected to be used with increasing frequency in the near future.
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