Marc Blitz, Privacy and the Thought Centered First Amendment
Comment by: Ann Bartow
Workshop draft abstract:
In his 2008 article, Intellectual Privacy (presented at PLSC 2008), Neil Richards proposes that activities that constitute close proxies for our thought should be shielded with a distinctive (and perhaps stronger) level of privacy protection than that provided to other activities — and that this additional layer of privacy protection is needed to protect the freedom of thought that underlies, and provides the foundation, for our First Amendment freedom of speech. (Neil M. Richards, Intellectual Privacy, 87 TEXAS L. REV. 387, 411 (2008))
This essay aims to build upon this project in two closely related ways: First, it closely considers the possible implications for both privacy and First Amendment law of the concept of “the extended mind,” which was proposed by Andy Clark and David Chalmers in 1998 and has recently attracted significant attention from both philosophers of mind and ethicists. Clark and Chalmers argue that mental processes may sometimes be embodied not only in our brains, but also in certain parts of the inanimate world, in the notes we take in a journal, for example, or in computer technology we use to store and retrieve information. As Clark and Chalmers note, this concept of mind as extending beyond the body may have ethical implications, since “in some cases, interfering with someone’s environment will have the same moral significance as interfering with their person.” (“The Extended Mind” in Andy Clark, Supersizing the Mind (2008)). Philosopher Neil Levy spells out such ethical implications of the extended mind concept, noting, for example, that “if it would be wrong to read [a person’s] mind because it would be an invasion of their privacy, then it might be equally wrong for the same reason to read their diary.” (Neil Levy, Neuroethics 62 (2004)). If, as Richard proposes, there is a class of activities that is so closely related to thought it deserves a distinctive kind of privacy protection, then we might define the rough boundaries of such activities by drawing on work (like that of Clark and Chalmers) in philosophy of mind, and on related work in cognitive neuroscience, that considers what sort of activity — including activities outside of our person — counts as an integral part of a mental process.
Second, the essay looks at recent consideration of whether observations or records of our brain processes (for example, in functional Magnetic Resonance Imaging (fMRI) or EEG readings) raise privacy problems distinct from those raised by other kinds of monitoring that reveals aspects of our physiological functioning (e.g., our blood type) or of our psychological character (e.g., profiling based on records of our consumer purchases). An argument for a special type of thought-protecting privacy does not necessarily entail the view that brain activity requires stronger insulation against monitoring than other kinds of activity — especially if “extended mind” encompasses many processes that occur outside of the brain. But, given the assumption among many in Western societies that mental processes take place inside of the brain, intuitions about the appropriateness of monitoring the brain provide a starting point for elaborating privacy protections that might ultimately also protect embodiment of mental processes which occur outside of it.