“Tessling on My Brain: The Future of Lie Detection and Brain Privacy in the Criminal Justice System” Canadian Journal of Criminology and Criminal Justice (2008) 50:8.
This article, written with two of my fave researchers, Cynthia Aoki and Max Binnie, investigates the future of what we call “brain privacy.”
As we all know, the criminal justice system requires a reliable means of detecting truth and lies. A battery of emerging neuroimaging technologies make it possible to gauge and monitor brain activity without the need to penetrate the cranium. Bypassing external physiological indicators of dishonesty relied upon by previous lie detection techniques, some neuroimaging experts actually believe in the possibility of reliable brain scan lie detection systems in the criminal justice system. Likewise, courts have contemplated the possibility that neuroscience might provide a means of reducing the search for truth to the existence or non-existence of certain brain states. In this article, it is asserted that Canadian courts’ current approach to protecting privacy cannot easily accommodate the challenges caused by these emerging technologies, and addresses the potential threat to privacy this poses.
We begin our piece with an examination of the ‘reasonable expectation of privacy’ standard adopted by the Supreme Court of Canada, arguing that various courts across Canada have misunderstood and misapplied the Tessling decision by way of an inappropriate analogy. After a description of brain scan lie detection systems, we then examine the courts’ use of the Tessling analogy in the context of brain privacy. In addition to demonstrating the danger in a generalized judicial proposition that there is no reasonable expectation of privacy in information emanating from a private place into a public space, we conclude that a more robust account of brain privacy is required and speculate about possible sources of law from which this might derive.
