Burns, Amy

Greismann, Libby

Halbleib, Jennifer M.

Loweberg, Kelly

Murphy, Emily

Persad, Govind

Preston, David L.M.

Rhodes, Harker

Simon, Brenda M.

English

UC Law SF Scholarship Repository

University of California, Hastings College of the LawUC Hastings Scholarship RepositoryFaculty Scholarship2010Misuse Made Plain: Evaluating Concerns AboutNeuroscience in National SecurityEmily MurphyUniversity of California Hastings College of Law, murphyemily@uchastings.eduKelly LowebergBrenda M. SimonAmy BurnsLibby GreismannSee next page for additional authorsFollow this and additional works at: https://repository.uchastings.edu/faculty_scholarshipThis Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarshipby an authorized administrator of UC Hastings Scholarship Repository.Recommended CitationEmily Murphy, Kelly Loweberg, Brenda M. Simon, Amy Burns, Libby Greismann, Jennifer M. Halbleib, Govind Persad, David L.M.Preston, and Harker Rhodes, Misuse Made Plain: Evaluating Concerns About Neuroscience in National Security, 1 ajob Neuroscience 15(2010).Available at: https://repository.uchastings.edu/faculty_scholarship/1510AuthorsEmily Murphy, Kelly Loweberg, Brenda M. Simon, Amy Burns, Libby Greismann, Jennifer M. Halbleib,Govind Persad, David L.M. Preston, and Harker RhodesThis article is available at UC Hastings Scholarship Repository: https://repository.uchastings.edu/faculty_scholarship/1510This article was downloaded by: [171.67.216.21]On: 19 December 2014, At: 10:10Publisher: Taylor & FrancisInforma Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House,37-41 Mortimer Street, London W1T 3JH, UKAJOB NeurosciencePublication details, including instructions for authors and subscription information:http://www.tandfonline.com/loi/uabn20Misuse Made Plain: Evaluating Concerns AboutNeuroscience in National SecurityKelly Lowenberg a , Brenda M. Simon a , Amy Burns b , Libby Greismann c , Jennifer M.Halbleib b , Govind Persad b , David L.M. Preston c , Harker Rhodes b & Emily R. Murphy da Stanford Law School Center for Law and the Biosciences ,b Stanford Law School ,c Stanford University ,d Stanford Law School and Director of SIGNAL ,Published online: 16 Apr 2010.To cite this article: Kelly Lowenberg , Brenda M. Simon , Amy Burns , Libby Greismann , Jennifer M. Halbleib , GovindPersad , David L.M. Preston , Harker Rhodes & Emily R. Murphy (2010) Misuse Made Plain: Evaluating Concerns AboutNeuroscience in National Security, AJOB Neuroscience, 1:2, 15-17, DOI: 10.1080/21507741003699447To link to this article:  http://dx.doi.org/10.1080/21507741003699447PLEASE SCROLL DOWN FOR ARTICLETaylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) containedin the publications on our platform. However, Taylor & Francis, our agents, and our licensors make norepresentations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of theContent. Any opinions and views expressed in this publication are the opinions and views of the authors, andare not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon andshould be independently verified with primary sources of information. Taylor and Francis shall not be liable forany losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoeveror howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use ofthe Content.This article may be used for research, teaching, and private study purposes. Any substantial or systematicreproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in anyform to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditionsNeuroethics and National SecurityVan Horn, J. D., and R. A. Poldrack. 2009. Functional MRI at thecrossroads. International Journal of Psychophysiology 73: 3–9.Weisberg, D., F. C. Keil, J. Goodstein, E. Rawson, and J. R. Gray.2008. The seductive allure of neuroscience explanations. Journal ofCognitive Neuroscience 20(3): 470–477.Williams, A., and S. Clifford. 2009. Mapping the field: Specialistscience news journalism in the UK national media. Cardiff UniversitySchool of Journalism, Media and Cultural Studies. Available at:http://www.cardiff.ac.uk/jomec/resources/Mapping ScienceJournalism Final Report 2003-11-09.pdf.Misuse Made Plain: EvaluatingConcerns About Neuroscience inNational SecurityKelly Lowenberg, Stanford Law School Center for Law and the BiosciencesBrenda M. Simon, Stanford Law School Center for Law and the BiosciencesAmy Burns, Stanford Law SchoolLibby Greismann, Stanford UniversityJennifer M. Halbleib, Stanford Law SchoolGovind Persad, Stanford Law SchoolDavid L.M. Preston, Stanford UniversityHarker Rhodes, Stanford Law SchoolEmily R. Murphy, Stanford Law School and Director of SIGNALWe agree with Marks’s (2010) core assertion that scienceshould not be misused for national security ends. We arestill left, however, with the big question: What counts as“misuse”? In this open peer commentary, we categorize thepossible “neuroscience in national security” definitions ofmisuse and identify which, if any, are uniquely presentedby advances in neuroscience. Ultimately, we conclude thatwhile national security is often a politicized issue, assessingthe state of scientific progress should not be.To define misuse, it is helpful to define what we wouldconsider appropriate use: the application of reasonably safeand effective technology, based on valid and reliable sci-entific research, to serve a legitimate end. This definitionpresents distinct opportunities for assessing misuse: mis-use is the application of invalid or unreliable science, or isthe use of reliable scientific methods to serve illegitimateends. The assessments of each further depend on the spe-cific context in which a technology is being used. Withinthe domain of national security, various different contextsThis commentary is the result of a workshop sponsored by the Stanford Interdisciplinary Group in Neuroscience And Law (SIGNAL),supported by the Stanford Law School Center for Law and the Biosciences.Address correspondence to Kelly Lowenberg, Stanford Law School, Center for Law and the Biosciences, Stanford, CA 94305, USA. E-mail:klowenberg@law.stanford.eduexist, each with different standards for evaluating the scien-tific basis of the technology and whether its use is justified.SCIENTIFIC VALIDITY AND RELIABILITYIn assessing whether a technology is prematurely applied,a threshold concern is whether the science itself producessufficiently valid and reliable results for the specific ap-plication. For neuroscientific applications to national se-curity, the gaps between research and valid applicationhave already been identified in a recent publication byan interdisciplinary group of experts (see Canli et al.2007).Validity and reliability questions are important to as-sessing the potential use of functional magnetic resonanceimaging (fMRI)-based lie detection, where it is presentlyunclear how reliable the results are outside of the con-trolled laboratory context (for a review, see Greely and Illes2007). A concern that Canli and colleagues (2007) articulateis for “study designs that assume experimental control overApril–June, Volume 1, Number 2, 2010 ajob Neuroscience 15Downloaded by [171.67.216.21] at 10:10 19 December 2014 AJOB Neurosciencestimulus conditions, subject selection, and participant co-operation that may not exist in field applications.” Thisconcern generalizes to Marks’s area of interest: How validand reliable fMRI-based lie detection would be in a high-pressure national security context is far from clear, but isultimately a scientific question.Furthermore, how reliable does a technology need to befor national security experts to use it appropriately? Con-text is central to a complete answer to this question. Forexample, most U.S. jurisdictions do not permit polygraphevidence to be admitted in court because of concerns aboutreliability,1 but a technology need not meet that same stan-dard to be used during an investigation. Police officers, notjust military interrogators, regularly use polygraphs as aninvestigatory tool. Most would hardly consider police use ofpolygraphs to be “misuse” per se, perhaps because the poly-graphed person consented to participate, often after consul-tation with a lawyer. Thus, a technology that is not reliableenough for use in some contexts might still be acceptable inothers without arousing serious ethical concerns.Marks is a self-described “neuroskeptic,” meaning hequestions whether neuroscientific technologies can actuallydo what their adopters claim. His article, however, doesnot discuss the validity of claims about neuroscientific tech-nologies, nor does it revisit the research-application gapsunique to neuroscientific technologies.2 Instead, Marks dis-cusses the failings of other tools used in the service of na-tional security: polygraph errors, incorrect interpretationsof satellite imagery, and enhanced interrogation resultingin false confessions. With regard to the neuroscientific toolshe mentions (neuroimaging and psychoactive drugs), hefocuses on how persuasive their results will be, but not onwhether those results will be right. Perhaps the views inhis paper could be better described as “neuroconcerned”:concerned about whether even scientifically reliable neu-roscience could be used to cause harm or further harmfulends.LEGITIMACY OF MEANSContexts within national security scenarios will affectwhether applying a technology is a misuse. Did the per-son consent to the procedure? Is it a part of interrogation(see Thompson 2005)? Will it be presented as evidence todecision makers in policy or law? Or, will it be used tojustify harsh physical measures for extracting further in-formation, perhaps functioning as a pretext to apply meth-ods that would otherwise be considered illegitimate (seeMarks 2007)? These contexts produce different outcomes;1. But 18 states allow polygraphs to be used as evidence if bothparties stipulate to their admission. New Mexico is the only statein which polygraphs are presumptively admissible without theparties’ stipulation: State v. Dorsey, 88 N.M. 184 (1975).2. Marks may have excluded that discussion because he suspectsthat the national security enterprise may not care how well suchtechnologies work. For example, Marks described how militaryinterrogators were unconcerned that the manner in which theyused polygraphs could not produce reliable results (Marks 2010, 4).one would expect a higher standard of scientific reliabilityof technology used to produce evidence shown to a decisionmaker than to produce data that merely create leads in aninvestigation.Independent from whether the technology works wellenough for a particular purpose, we must also determinewhether the technology is inherently harmful. For example,the procedure may be unsafe, painful, invasive, or causesome other harm. Marks draws analogies between the mili-tary’s exploitation of neuroscience and enhanced interroga-tion techniques, which he says resulted from the exploita-tion of behavioral psychology. Regardless of whether en-hanced interrogation techniques deployed science prema-turely or resulted in false confessions, many people wouldfind them objectionable because they cause a person to bein fear or pain. The neuroscientific technologies Marks dis-cussed are not equivalent to enhanced interrogation tech-niques in this respect.Neuroscientific technologies, however, may be consid-ered inherently harmful as means because they are uniquelyviolative of a person’s privacy and perhaps unduly coercive.Strategically intervening in brain processes to create feel-ings of trust or to extract truthful statements is coercive in away that undermines an individual’s autonomy. Addition-ally, extracting information about an individual’s unspokenthoughts directly invades spaces believed to be the mostprivate. In this respect, applications of neuroscience may bemore susceptible to misuse than other types of technology.However, as with validity and reliability standards, howmuch coercion or intrusion into privacy is appropriate willdepend on the context.LEGITIMACY OF ENDSFinally, misuse may be found if the ultimate ends that atechnology is serving are illegitimate. Offering the resultsof a scientific analysis to intentionally mislead courts or de-cision makers would always be a misuse of the technology.When scientific findings are intentionally skewed, however,the problem is not the technology itself, but rather officialswho manipulate the truth for political purposes.Beyond using results to intentionally mislead, it is lessclear what purposes should be deemed illegitimate. Whoshould decide what uses of neuroscience are legitimate,particularly with respect to national security? Marks sug-gests that we “should empower the public to challengedecisions regarding the development and application ofneuroscience, and engage with them in figuring out theroad ahead” (Marks 2010, 4). Certainly, we should encour-age the public to think critically about scientific findings,but national security uses of science are often likely to beclassified and not subject to public debate. Because theyare often opaque, such uses of neuroscience in national se-curity may be more susceptible to misuse than in otherapplications.Furthermore, what role should the public have in deter-mining the direction of scientific research and technologydevelopment? Although much of the funding is collected16 ajob Neuroscience April–June, Volume 1, Number 2, 2010Downloaded by [171.67.216.21] at 10:10 19 December 2014 Neuroethics and National Securitythrough taxes, relying too much on public opinion aboutsupport for research and development may unnecessarilypoliticize those decisions. Determining what applicationsof neuroscience are appropriate will not be as simple asdetermining what uses are popular.Marks also suggests that the powerful are more likelyto exploit neuroscience against the powerless than againstthemselves, and that society should reconsider neuroscienceas a way to help disenfranchised and impoverished per-sons. Nontherapeutic neuroscience research aims to gainknowledge about the brain, which may be applied in anumber of ways, some of which could help marginalizedpersons. Whether research fits with an overriding politicalagenda, however, should not be the ultimate test of whetherit is appropriate. Certainly, we would be concerned if allneuroscience research must be justified by an overridingnational security goal. If it is inappropriate to imbue a fieldof basic research with a political agenda, switching politicsdoes not remedy that concern.CONCLUSIONCanli and colleagues mapped the terrain of neuroscienceand national security in The American Journal of Bioethics 3years ago. The technologies have moved forward, but theframework they established for considering the issues stillapplies. Canli and colleagues concluded that neurosciencemight be misused in national security, but also that it mightbe ethically and appropriately used. Marks repeats the firstconclusion, by examining risks presented by the persuasiveeffect of neuroscientific technologies, but does not addressthe second—and offers no useful path forward beyond ageneral “neuroskepticism.” Skepticism is a useful tool forreaching a balanced and rigorous assessment of a technol-ogy and its use, but it is a method, not a conclusion. Ifneuroscientific technology is used in the service of nationalsecurity, careful consideration must be given to whether thatuse is appropriate. What constitutes inappropriate use—misuse—depends much more on the circumstances of usethan on whether the technology arises from neurosciencespecifically or from another field of scientific research. REFERENCESGreely, H. T., and J. Illes. 2007. Neuroscience-based lie detection:The urgent need for regulation. American Journal of Law and Medicine33: 377–431.Canli, T., S. Brandon, W. Casebeer, et al. 2007. Neuroethics andNational Security. American Journal of Bioethics 7(5): 3–13.Marks, J. H. 2007. Interrogational neuroimaging in counterterror-ism: A no-brainer or a human rights hazard. American Journal of Lawand Medicine 33: 483.Marks, J. H. 2010. A neuroskeptic’s guide to neuroethics and na-tional security. AJOB Neuroscience 1(2): 4–12.Thompson, S. K. 2005. The legality of the use of psychiatric neu-roimaging in intelligence interrogation. Cornell Law Review 90: 1601.From Brain Image to the Bush Doctrine:Critical Neuroscience and the PoliticalUses of NeurotechnologySuparna Choudhury, Max Planck Institute for the History of ScienceIan Gold, McGill UniversityLaurence J. Kirmayer, McGill UniversityWhen science is used for a practical purpose it can go wrongin at least three different ways. First, theory can be incor-rectly applied. In 1986, NASA had the necessary theory toconstruct O-rings for the space shuttle that wouldn’t deformin the cold, but that theory was incorrectly applied, and theChallenger exploded. Second, theory can be correctly appliedin the service of an immoral act; the use of the atom bombprovides an obvious example. Third, one can misrepresentAddress correspondence to Laurence J. Kirmayer, Division of Social and Transcultural Psychiatry, McGill University, 1033 Pine Ave. West,Montreal, Quebec H3A 1A1, Canada. E-mail: laurence.kirmayer@mcgill.caor overinterpret scientific theories for immoral ends. EwanCameron’s notorious experiments in psychic driving werepredicated on the theory that psychosis could be cured byreconstructing the mind from the ground up (Marks 1991).Such experiments, clearly immoral from the vantage pointof the present, would presumably have been justified inthe eyes of some by that theory. In this latter case, a poortheory allowed a psychiatrist—and a political agency, theApril–June, Volume 1, Number 2, 2010 ajob Neuroscience 17Downloaded by [171.67.216.21] at 10:10 19 December 2014 

Misuse Made Plain: Evaluating Concerns About Neuroscience in National Security

https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=2507&context=faculty_scholarship

Misuse Made Plain: Evaluating Concerns About Neuroscience in National Security

Abstract

Similar works

Full text

Available Versions

UC Law SF Scholarship Repository