The Constitutionality of Brain Searches

29 Pages Posted: 16 May 2023 Last revised: 25 May 2023

See all articles by Wayne Unger, JD

Wayne Unger, JD

Quinnipiac University School of Law

Date Written: May 24, 2023

Abstract

If technology could read your mind and capture your thoughts as storable and processable data, would that frighten you? Recent advancements in brain-computer interfaces will likely make mind-reading a reality, and if it does, it presents the last stand or final frontier in the battle for privacy protections. It is well established that an individual must be able to retreat into their home and be free from government intrusion. But if an individual cannot retreat into their own mind free from government intrusion, then true solitude will become extinct. In a future state where brain-computer interfaces can actively decode an individual’s ideas, thoughts, and beliefs—neurodata—what constitutional protections, if any, exist to preclude government intrusion and protect the freedom of thought?

This Essay analyzes Fourth Amendment jurisprudence as applied to neurodata. More specifically, it examines the Court’s current per-spectives regarding highly sensitive and intimate data to neurodata, and in doing so, it utilizes Matthew Tokson’s emerging principles of Fourth Amendment privacy. I argue that neurodata unequivocally falls within the Fourth Amendment’s protections, and I provide a normative justifi-cation for extending the Fourth Amendment to this emerging technology and category of data.

Keywords: brain, fourth amendment, search, neurotechnology, privacy, data privacy, security, BCI, medical device, Tokson, emerging technology, constitutional law, constitution

Suggested Citation

Unger, Wayne, The Constitutionality of Brain Searches (May 24, 2023). Wayne Unger, The Constitutionality of Brain Searches, 50 Hastings Const. L.Q. 321 (2023). Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol50/iss4/2, Available at SSRN: https://ssrn.com/abstract=4448256

Wayne Unger (Contact Author)

Quinnipiac University School of Law ( email )

275 Mt. Carmel Ave.
Hamden, CT 06518
United States

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