To address the privacy challenges posed by neurotechnology,it is necessary to consider whether to introduce new rights or adapt established rights.Focusing on the right to mental privacy proposed by Marcello Ienca and Roberto Andorno,this paper develops a frame-work to assess the need to introduce emerging rights,which unfolds in three steps:(i)confirm the substantial legitimacy of new claims to determine if they warrant legal protection;(ii)eval-uate whether incorporating new claims into existing rights would lead to inadequate protection,thus necessitating a new right;and(iii)ensure that introducing a new right does not unduly re-strict existing rights,so as to preserve legal coherence.First,decoding mental states poses u-nique challenges to one's mental privacy.An individual's inner life and personality traits are of substantive value to be protected by law.However,the right to mental privacy and the tradi-tional privacy right share the same basis,both protecting people's feelings of privacy related to dignity and freedom.The neurotechnological scenario does not introduce new interest claims that warrant distinct legal protection beyond the existing privacy framework.Including mental privacy in the established right to privacy offers sufficient protection,thus eliminating the need for it to stand alone.Establishing a separate right could result in a mind-body dichotomy in the legal protection of privacy.Furthermore,the special nature of brain data does not exceed the protective scope and strength of the existing data protection right.The application of the provi-sions on sensitive data to the protection of brain data does not result in inadequate protection.Second,the decoding of unconscious brain data by neurotechnology challenges the premise of autonomy and informed consent in information privacy.Protecting unconscious brain data and the individual's ability to consciously control the flow of personal information is important.However,introducing a separate right to mental privacy merely reaffirms the autonomy principle already confirmed by informational privacy.It neither restores individuals'control over their unconscious brain data nor offers stronger protection than current privacy rights.Therefore,there is no need to recognize a new right to emphasize the existing right basis circumvented by technology.Finally,this paper contends that neural activity is not a viable holder for safeguard-ing mental privacy interests and there is no need to introduce a wider privacy right to cover neu-ral activity as the source of brain data.In summary,this article argues that the unique nature of brain data,along with the way such data are obtained,does not justify introducing a new right to mental privacy.New claims share the same rights basis with established rights and emerging concerns can be addressed within the existing privacy protection framework.
万方数据
维普
