Pain Detection and the Privacy of Subjective Experience

24 Pages Posted: 29 Mar 2007 Last revised: 13 Dec 2007

See all articles by Adam J. Kolber

Adam J. Kolber

Brooklyn Law School; NYU School of Law


Pain is a fundamentally subjective experience. We have uniquely direct access to our own pain but can only make rough inferences about the pain of others. Nevertheless, such inferences are made all the time by doctors, insurers, judges, juries, and administrative agencies. Advances in brain imaging may someday improve our pain assessments by bolstering the claims of those genuinely experiencing pain while impugning the claims of those who are faking or exaggerating symptoms. These possibilities raise concerns about the privacy of our pain. I suggest that while the use of neuroimaging to detect pain implicates significant privacy concerns, our interests in keeping pain private are likely to be weaker than our interests in keeping private certain other subjective experiences that permit more intrusive inferences about our thoughts and character.

Keywords: Neuroimaging, Neuroethics, Pain, Subjective Experience, Privacy

Suggested Citation

Kolber, Adam Jason, Pain Detection and the Privacy of Subjective Experience. American Journal of Law & Medicine (Brain Imaging & The Law Symposium), Vol. 33, p. 433, 2007; San Diego Legal Studies Paper No. 07-92. Available at SSRN:

Adam Jason Kolber (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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