Two weeks ago researchers UC Berkley reported a breakthrough in understanding human speech, a breakthrough that could someday shatter many of our social conventions. The scientists, studying the patterns with varies subjects’ brains, were able to determine what words the subjects hearing by the brain’s activity alone. It is a small step from there to deciphering the unspoken words thought by a person. The researchers are developing this technology to medically help people with severe brain injury and disease. We could even learn just what is going on in a person who is in a persistent coma state, breaking through to these terribly isolated people.
Being a science-fiction writer I naturally began pondering where this technology might lead. As the software improves, and the processors become faster and more efficient I certainly see the possibility of real time conversations and interpretation, that fine and good as I think this is the goal for the researchers, but what happen as signal detection improves? What if you can detect the required activity without any electrodes or any other physical connection to the target brain? That is electronic telepathy. For our society, this has tremendous implications.
Private applications are in their own right staggering. Employers reading your thoughts during job interviews, or if it become cheap enough, just randomly while you are on the clock. Contract negotiations become a terribly one sided affair if only one side can preserve their secrets. What happens if the news reporter interviewing you can also record your thoughts as well as your spoken response?
My blood runs cold thinking about government uses for this possible technology. Imagine the police modifying the Miranda warning to include the phrase, ‘…anything you think may be used against you in a court of law.’ People have a difficult time keeping their mouths firmly shut when speaking with police as it is, give the police the ability to know your thoughts and you’re wide open before the state.
Of course there are those who would insist that we have a right to be secure in our thoughts, and I would be among them, but I don’t think out rights are limited to only those rights as they were understood at the close of the 18th century. I do believe that new rights can and should be recognized as society and technology change. It seems to me that an originalist in constitutional interpretation would have very little room to argue that your thoughts are secure from prying. The Constitution is silent on the matter of mind reading and I’ve never heard it mentioned in the Federalist Papers.
What an interesting world we are hurtling towards.
I agree with your reply. The 9th is too often forgotten or ignored. Of course it was used as part of the argument to establish the rights to Privacy, Birth Control, and Abortion making it not a popular amendment on the right.
Quoting some interesting work from Cornell:
NINTH AMENDMENT
UNENUMERATED RIGHTS
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
RIGHTS RETAINED BY THE PEOPLE
Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those.1 Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”2 It is clear from its text and from Madison’s statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas[p.1504]not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.3 Recently, however, the Amendment has been construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.
The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court4 until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut.5 There a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the Court, asserted that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”6 Thus, while privacy is nowhere mentioned, it is one of the values served and protected by the First Amendment, through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.
“The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep–rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth[p.1505]Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.”7 While, therefore, neither opinion sought to make of the Ninth Amendment a substantive source of constitutional guarantees, both did read it as indicating a function of the courts to interpose a veto with regard to legislative and executive efforts to abridge other fundamental rights. In this case, both opinions seemed to concur that the fundamental right claimed and upheld was derivative of several express rights and in this case, really, the Ninth Amendment added almost nothing to the argument. But if there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?8
Just my two cents 🙂