Neuroethics & Law Blog

Malintent - Big Brother is not watching. Really. We mean it. (Reiner)

Foxnews.com has a post about a recent experiment carried out under the auspices of the Future Attribute Screening Technology (FAST) Project for the Human Factors division in Homeland Security's directorate for Science and Technology Homeland Security Program [The video accompanying the Foxnews.com post is not very illuminating, but it is a bit chilling]. According the Homeland Security's website, "the FAST Project is an initiative to develop innovative, non-invasive technologies to screen people at security checkpoints.  FAST is grounded in research on human behavior and psychophysiology, focusing on new advances in behavioral/human-centered screening techniques."

The experiment utilize an integrated device dubbed MALINTENT, which the Foxnews.com post describes as follows:

It has a series of sensors and imagers that read your body temperature, heart rate and respiration for unconscious tells invisible to the naked eye — signals terrorists and criminals may display in advance of an attack.

But this is no polygraph test. Subjects do not get hooked up or strapped down for a careful reading; those sensors do all the work without any actual physical contact. It's like an X-ray for bad intentions.

Currently, all the sensors and equipment are packaged inside a mobile screening laboratory about the size of a trailer or large truck bed, and just last week, Homeland Security put it to a field test in Maryland, scanning 144 mostly unwitting human subjects.

The experiment was carried out on "average Joes living in the D.C. area who thought they were attending something like a technology expo; in order for the experiment to work effectively and to get the testing subjects to buy in, the cover story had to be convincing. While the 144 test subjects thought they were merely passing through an entrance way, they actually passed through a series of sensors that screened them for bad intentions."  There was even a control group of 23 attendees who were each given a "disruptive device" to carry through the portal — and, unlike the other attendees, were conscious that they were on a mission.

The concept is of course similar to polygraphs, except that the technology allows remote sensing.  Whether MALINTENT produces more reliable results than polygraphs remains to be seen, but at least some are sceptical (and others derisively ironic); as for me, I want to see data before I believe anything. Unfortunately, the results of the experiment are classified.  Nonetheless, "Undersecretary for Science and Technology Adm. Jay Cohen declared the experiment a "home run."  We'll see.  Or perhaps we won't.

And then there is that nagging issue of privacy.  Bob Burns, MALINTENT's project leader, brushes off privacy issues by declaring that,

Once you are through the FAST portal, your scrutiny is over and records aren't kept. "Your data is dumped," said Burns. "The information is not maintained — it doesn't track who you are."

How reassuring.

Hat tip to Sofia Lombera

"Is Morality Universal and Should the Law Care?"

On Friday, Brooklyn Law School hosts its symposium, "Is Morality Universal and Should the Law Care?"  The program is below:

8:15 am		Registration and Continental Breakfast
8:45 am		Opening Remarks
9:00 am		Moral Universals vs. Adaptive Flexibility
		Panelists John M. Darley Dorman T. Warren Professor of Psychology and Public Affairs Princeton University Adam J. Kolber Associate Professor of Law University of San Diego School of Law; Visiting Associate Professor of Law Brooklyn Law School Bailey H. Kuklin Professor of Law Brooklyn Law School Discussant Laurence R. Tancredi Clinical Professor of Psychiatry New York University School of Medicine Moderator Miriam H. Baer Assistant Professor of Law Brooklyn Law School
11:15 am		Break
11:30 am		Moral Attribution: Positive and Negative
		Panelists Susanna L. Blumenthal Associate Professor of Law and History University of Minnesota Law School Lawrence M. Solan Don Forchelli Professor of Law and Associate Dean for Academic Affairs Brooklyn Law School Discussant Joshua Knobe Assistant Professor of Philosophy University of North Carolina – Chapel Hill Moderator Jason Mazzone Associate Professor of Law Brooklyn Law School
1:00 pm		Lunch
2:00 pm		How Universal are Moral Universals?
		Panelists Paul Bloom Professor of Psychology & Linguistics Yale University Ray Jackendoff Seth Merrin Professor of Philosophy and Co-Director Center for Cognitive Studies Tufts University John Mikhail Associate Professor of Law Georgetown University Law Center Moderator/Discussant Michael Cahill Associate Professor of Law Brooklyn Law School
4:45 pm		General Discussion
		Moderator Kevin M. Carlsmith Department of Psychology Colgate University

Stanford Center for Law & the Biosciences Blog

The Stanford Center for Law and the Biosciences has recently launched a new blog.  They even have a bunch of posts up already.  This should be a great addition to the blogosphere on topics in law and neuroscience and much more.  Welcome!

Univ. of Akron Neurolaw Symposium

Below is the schedule for the University of Akron Law School's upcoming neuroethics/neurolaw conference.  It looks like a great program.  I'm told that video from the conference will stream live here:

http://learn.uakron.edu/dds/events/law

Neuroscience, Law and Government Symposium Schedule 2008
	Online Registration (Credit Card Only) Registration Form (Print and mail)	Symposium Schedule Thursday, Sept. 25 2 and 3 p.m.   Tours of the Archives of the History of American Psychology 4:30 p.m.        Welcome Reception 6 p.m.              Keynote Speaker Henry T. Greely, Deane F. and Kate Edelman Johnson Professor of Law, Stanford Law School Law and the Revolution in Neurosciences: An Early Look Across the Field Friday, Sept. 26 7:30 a.m.         Continental Breakfast and Registration 8:20 a.m.         Panel 1: Neuroimaging, Deception and Neuroskepticism Dr. Steven J. Laken, President and CEO, Cephos Corp. Functional Magnetic Resonance Imaging for Lie Detection and Examples from Real World Testing Dr. Daniel D. Langleben, Department of Psychiatry, University of Pennsylvania Medical School Functional Brain Imaging for the Detection of Deception and Concealed Information Professor Jonathan H. Marks, Bioethics, Humanity and Law, Penn State University National Security, Neuroskepticism, and “Neural Rights” Moderator: The Honorable Jed S. Rakoff, United States District Court, Southern District of New York 9:50 a.m.         Break 10 a.m.                        Panel 2: Applied Neuroscience Professor Nita Farahany, Vanderbilt University Law School Law, Neuroscience, and Behavioral Morality Professor Christian M. Halliburton, Seattle University School of Law How Privacy Killed Katz: A Tale of Cognitive Freedom and the Property of Personhood as Fourth Amendment Norm Professor Michael L. Perlin, New York Law “His Brain Has Been Mismanaged with Great Skill”: How Will Jurors Respond to Neuroimaging Testimony in Insanity Defense Cases? Moderator:  Professor Michael D. Guttentag, Loyola Law School, Los Angeles 12:00 p.m.      Lunch 1:15 p.m.        Panel 3: Neuroscience in the Tribunal Dr. Dov Fox, Lecturer in Bioethics and Law, Yale University Electroencephalography and the “The Spirit and History of the Fifth Amendment”: Forensic Neuroscience and the Testimonial/Physical Distinction Professor Jane Campbell Moriarty, The University of Akron School of Law Neuroimages of Deception: Evaluating Reliability from Daubert to Guantanamo Professor Julie Seaman, Emory Law School fMRI Lie Detection and Jury Nullification: Opening the Black Box of the Mind to Open the Black Box of the Jury Room. Moderator: Professor Joëlle Anne Moreno, Florida International University School of Law 2:45 p.m.        Break 3 p.m.              Panel 4: Neuroscience, Gender and Capital Cases Professor Jay Aronson, Department of History, Carnegie Mellon University Brain Imaging, Culpability, and the Juvenile Death Penalty Professor O. C. Snead, Notre Dame Law School Neuorimaging and the “Complexity” of Capital Punishment Professor Stacey Tovino, Drake University Law School Neuroscience, Gender, and the Law Moderator: Elizabeth A. Reilly, Associate Dean and C. Blake McDowell Professor of Law, The University of Akron School of Law

Ekman et al. Examine Political Spin

Adding to existing controversy over neuropolitics-related methodology: Software Spots the Spin in Political Speeches in New Scientist.  (Hat tip: Alex Fridman)

"The Actor–Observer Bias and Moral Intuitions"

The Actor–Observer Bias and Moral Intuitions: Adding Fuel to Sinnott-Armstrong’s Fire  is now available for free download in the current issue of Neuroethics:

Thomas Nadelhoffer¹ and Adam Feltz¹

(1)	Philosophy, Dickinson College, 201 East College, Carlisle, PA 17013, USA

Abstract:  In a series of recent papers, Walter Sinnott-Armstrong has used findings in social psychology to put pressure on the claim that our moral beliefs can be non-inferentially justified. More specifically, he has suggested that insofar as our moral intuitions are subject to what psychologists call framing effects, this poses a real problem for moral intuitionism. In this paper, we are going to try to add more fuel to the empirical fire that Sinnott-Armstrong has placed under the feet of the intuitionist. Along the way, we first provide an overview of what Sinnott-Armstrong calls the Master Argument against intuitionism. Then we examine some of the literature on framing effects—especially as it pertains to moral philosophy. Finally, we present the results of a new study which create yet another hurdle intuitionists must clear if they want to motivate their view. It appears that in addition to being influenced by framing effects, our moral intuitions are also influenced by an actor–observer bias as well—a bias whereby we hold other people to different moral standards than we would hold ourselves even if we were in the same situation. If we’re right, the burden is on the moral intuitionist to explain why we should have faith in our moral intuitions despite the gathering evidence concerning their seeming unreliability. And by our lights, this is something that simply cannot be done from the armchair.

"Extending Our View on Using BCIs for Locked-in Syndrome"

Extending Our View on Using BCIs for Locked-in Syndrome is now available for free download in the current issue of Neuroethics:

Andrew Fenton^{1, 2} and Sheri Alpert^{1, 2}

(1)	Novel Tech Ethics, Department of Bioethics, Dalhousie University, Halifax, Canada

(2)	Novel Tech Ethics, Intellectual Commons, Dalhousie University, 1234 Le Marchant Street, Halifax, NS, B3H 3P7, Canada

Abstract:  Locked-in syndrome (LIS) is a severe neurological condition that typically leaves a patient unable to move, talk and, in many cases, initiate communication. Brain Computer Interfaces (or BCIs) promise to enable individuals with conditions like LIS to re-engage with their physical and social worlds. In this paper we will use extended mind theory to offer a way of seeing the potential of BCIs when attached to, or implanted in, individuals with LIS. In particular, we will contend that functionally integrated BCIs extend the minds of individuals with LIS beyond their bodies, allowing them greater autonomy than they can typically hope for in living with their condition. This raises important philosophical questions about the implications of BCI technology, particularly the potential to change selves, and ethical questions about whether society has a responsibility to aid these individuals in re-engaging with their physical and social worlds. It also raises some important questions about when these interventions should be offered to individuals with LIS and respecting the rights of these individuals to refuse intervention. By aiding willing individuals in re-engaging with their physical and social worlds, BCIs open up avenues of opportunity taken for granted by able individuals and introduce new ways in which these individuals can be harmed. These latter considerations serve to highlight our emergent social responsibilities to those individuals who will be suitable for, and receive, BCIs.

"The Impact of Neuroscience on Health Law"

"The Impact of Neuroscience on Health Law" is now available for free download in the current issue of Neuroethics:

Stacey A. Tovino¹

(1)	Drake University Law School, Des Moines, IA, USA

Abstract  Advances in neuroscience have implications for criminal law as well as civil and regulatory law, including health, disability, and benefit law. The role of the behavioral and brain sciences in health insurance claims, the mental health parity debate, and disability proceedings is examined.

"The Normativity of Memory Modification" by Liao and Sandberg

"The Normativity of Memory Modification" is now available for free download in the current issue of Neuroethics:

S. Matthew Liao¹ and Anders Sandberg¹

(1)	Oxford University, Littlegate House, 16/17 St. Ebbes Street, Oxford, OX1 1PT, UK

Abstract  The prospect of using memory modifying technologies raises interesting and important normative concerns. We first point out that those developing desirable memory modifying technologies should keep in mind certain technical and user-limitation issues. We next discuss certain normative issues that the use of these technologies can raise such as truthfulness, appropriate moral reaction, self-knowledge, agency, and moral obligations. Finally, we propose that as long as individuals using these technologies do not harm others and themselves in certain ways, and as long as there is no prima facie duty to retain particular memories, it is up to individuals to determine the permissibility of particular uses of these technologies.

Gardner on Excuses and Emotions

John Gardner has posted the following to SSRN:

"The Logic of Excuses and the Rationality of Emotions"

Oxford Legal Studies Research Paper No. 35/2008

JOHN GARDNER, University of Oxford - Faculty of Law
I have previously defended a way of thinking about excuses (in the criminal law and in ordinary life) according to which being excused is a way of living up to standards of reasonableness, not a way (as J.L. Austin and H.L.A. Hart once thought) of being exempted from those standards. This suggestion keeps excuses distinct from denials of responsibility, a distinction which Austin and Hart collapsed. But it may be thought that my suggestion causes a collapse in the opposite direction: it collapses excuses into justifications as the price of keeping them distinct from denials of responsibility. For how could something be reasonable and yet unjustified? Answer: nothing can be both reasonable and unjustified. But an unreasonable action could be performed on the strength of a reasonable motivation. Then the motivation is justified but the action is merely excused. In this paper I explore this possibility in more detail with a particular focus on emotional motivations. I try to establish the logical space for reasonable emotions that lead to unreasonable actions. In the process I both confirm (in part) and challenge (in part) the temptation to assess our emotions as contributors to the practical side of our lives. I speak in favour of a view according to which emotions are highly answerable to reasons but not only, and in a way not primarily, to practical reasons.

Lawrence Farwell Responds at the Neuroethics & Law Blog

Lawrence Farwell responds to my post on brain-based lie detection here.   He notes that while the Herald Tribune makes it sound as though the BEOS tests used in India and his brain fingerprinting technique are similar, he argues that they are different in important ways.  See his comment for more.

Brain-Based Lie Detection Leads to Murder Conviction in India

According to this article in the Herald Tribune, a woman in India was convicted of murder on the basis of what is purported to be a brain-based method of lie detection:

The various technologies, generally regarded as promising but unproved, have yet to be widely accepted as evidence - except in India, where in recent years judges have begun to admit brain scans. But it was only in June, in a murder case in Pune, in Maharashtra State, that a judge explicitly cited a scan as proof that the suspect's brain held ''experiential knowledge'' about the crime that only the killer could possess, sentencing her to life in prison.

The test was based on electroencephalography and appears to be related to so-called "brain fingerprinting"  technology developed by Lawrence Farwell in the United States.  (The article refers to the "brain images" generated from the technique, though I don't think EEG provides the sort of information that we would ordinarily think of as a "brain image").

fMRI and End-of-Life Decisionmaking

Here is some information about Jon Eisenberg's recent article in Neuroethics, entitled "Schiavo on the Cutting Edge: Functional Brain Imaging and its Impact on Surrogate End-of-Life Decision-Making ":

Jon B. Eisenberg¹

(1)	Eisenberg & Hancock LLP, 1970 Broadway, Suite 1200, Oakland, CA 94612, USA

Abstract: The article addresses the potential impact of functional brain imaging (functional magnetic resonance imaging and positron-emission tomography) on surrogate end-of-life decision-making in light of varying state-law definitions of consciousness, some of which define awareness behaviorally and others functionally. The article concludes that, in light of admonitions by neuroscientists that functional brain imaging cannot yet replace behavioral evaluation to determine the existence of consciousness, state legislatures, courts and drafters of written advance healthcare directives should consider treating behavior, not function, as the touchstone for end-of-life decision-making.

Neil Levy Editorial

Here is Neil Levy's two-page editorial introducing the latest issue of the journal Neuroethics.  Neil reports on the growing influence of the field, the remarkable success of the journal, and the topics in the current issue.  He also reminds us of the Neuroethics Society's first annual meeting on Nov. 13-14.

"Compliance by Believing" on SSRN

On SSRN:

"Compliance by Believing: An Experimental Exploration on Social Norms and Impartial Agreements"

MARCO FAILLO, University of Trento - Faculty of Economics
STEFANIA OTTONE, Università degli Studi di Milano-Bicocca
LORENZO SACCONI, University of Trento - Department of Economics
The main contribution of this paper is twofold. First of all, it focuses on the decisional process that leads to the creation of a social norm. Secondly, it analyses the mechanisms through which subjects conform their behaviour to the norm. In particular, our aim is to study the role and the nature of Normative and Empirical Expectations and their influence on people's decisions. The tool is the Exclusion Game, a sort of 'triple mini-dictator game'. It represents a situation where 3 subjects - players A - have to decide how to allocate a sum S among themselves and a fourth subject - player B - who has no decisional power. The experiment consists of three treatments. In the Baseline Treatment participants are randomly distributed in groups of four players and play the Exclusion Game. In the Agreement Treatment in each group participants are invited to vote for a specific non-binding allocation rule before playing the Exclusion Game. In the Outsider Treatment, after the voting procedure and before playing the Exclusion Game, a player A for each group (the outsider) is reassigned to a different group and instructed about the rule chosen by the new group. In all the treatments, at the end of the game and before players are informed about the decisions taken during the Exclusion Game by the other co-players, first order and second order expectations (both normative and empirical) are elicited through a brief questionnaire. The first result we obtained is that subjects' choices are in line with their empirical (not normative) expectations. The second result is that even a non-binding agreement induces convergence of empirical expectations - and, consequently, of choices. The third results is that expectation of conformity is higher in the partner protocol. This implies that a single outsider breaks the 'trust and cooperation' equilibrium.