Neuroethics is a relatively new field within bioethics, concerned with the ethical, legal and social impact of neuroscience. It emerged in response to the rapid development of neuroscience in the late 20^th century, including our understanding of human cognition and emotion along with functional neuroimaging (fMRI), which became widely available in the 1990s.

As a result of the maturation of cognitive and affective neuroscience, neuroscience can now be applied to solving problems in many spheres of human life beyond clinical medicine. Fields such as education, business, politics, law, entertainment and national security that require understanding, assessing, predicting, controlling, or improving human behavior will find neuroscience relevant.(1)

With the growing applicability of neuroscience comes a growing set of ethical issues concerning its applications. In order to explain the nature and scope of neuroethics, it is necessary first to review the ethically most significant new uses of neuroscience. We therefore begin with examples of how neuroscience is being used in all of these areas, and then present an analysis of the ethical issues raised by these applications.

New Roles for Neuroscience in Society

Criminal Justice and The Law
Neuroscience is potentially applicable to all of the same areas of criminal justice and the law to which psychology has already been applied.(2) Defendants’ personal, medical and psychological history and diagnoses have long been introduced in court as mitigating factors to argue that the accused deserves some leniency in sentencing. Increasingly information about defendants’ brain function from brain imaging studies have also been introduced at the sentencing phase.(3) Of two recent landmark Supreme Court decisions concerning punishment of minors, the 2005 Roper v. Simmons decision concerning capital punishment did not make reference to neuroscience evidence concerning brain maturation,(4) but the later 2010 Graham v Florida did, stating that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence.”(5)

In principle, neuroscience can also play a role in assessing dangerousness and risk of recidivism. This information, at present based on behavioral history and psychological examination, is used in sentencing and parole decisions. Such uses of neuroscience in the courts remain hypothetical, but research suggests it could be feasible. Brain imaging studies of murderers have distinguished between impulsive murderers and those who planned their crimes, the latter being more likely to murder again.(6)

The practice of “therapeutic justice,” where offenders are sent for anger management classes, parenting classes, treatment for drug dependence, also holds potential for future uses of neuroscience. One example of present-day, brain-based therapeutic justice is the practice of giving sex offenders long-acting forms of anti-androgen medications. This so-called “chemical castration” is effective through its effects on the brain. Other psychopharmacologic treatments with potential for therapeutic justice include serotonergic drugs such as SSRIs, which have been found effective for reducing repeat offending in sex offenders, as well as reducing impulsive violence.(7)(8)

fMRI has also been used to measure the likely truthfulness of statements,(9)(10) although to date such methods have not been admitted as evidence in a court of law.(11) Already, a commercial enterprise promotes its “state-of-the-art technology” that displays brain activity which is the basis of a ‘’truth verification brain imaging service.”(12) A different type of brain-based lie detection, based on event-related potentials (ERPs) has been admitted as evidence in the U.S.(13) and in India. ERPs are easily measured using scalp-recorded EEG and have already helped convict at least two defendants of murder in India.(14)

Additional information about the evolving interface between law and neuroscience can be found at the website of the MacArthur Foundation Law and Neuroscience Network (http://www.lawneuro.org/).(15)

Neuromarketing
The emotions and motivations of consumers are a particularly important focus for marketers, so the prospect of “reading” the brain states of consumers is therefore of great interest. Compared to some psychological states, states of liking and wanting have a relatively straightforward relation to patterns of brain activity.

Electroencephalography(EEG) and functional magnetic resonance imaging (fMRI) have therefore become widely used tools in market research, and in 2002 the term ‘neuromarketing’ was coined to refer to this research.(16) Of course, studies aimed at improving sales in a competitive market are generally not made public. The websites of neuromarketing companies describe their services in some detail, stopping short of reporting their findings or recommendations to specific clients. The websites of FKF Applied Research and Neurofocus are illustrative: http://www.fkfappliedresearch.com/ and http://www.neurofocus.com/.

Given the confidential nature of much of neuromarketing, its success as a business tool is also difficult to gauge. Nevertheless, the list of companies paying for neuromarketing services suggests that many corporate decision-makers have faith in it. Forbes magazine reported that this list includes Chevron, Disney, Ebay, Google, Hyundai, Microsoft, Pepsico and Yahoo.(17) The techniques of neuromarketing can also be used to study preferences for health behaviors(18) and political candidates.(19) A political neuromarketing study of primary voters in 2007,(20) showed activation in response to pictures of Hillary Clinton. Because the area activated (the anterior cingulated cortex) is known to respond when subjects experience conflict, the image was interpreted as evidence that voters felt conflicted about Clinton’s candidacy (see http://kolber.typepad.com/ethics_law_blog/2007/11/this-is-your-br.html for a critique of this use of neuromarketing).

Published research in the field of neuromarketing is more focused on academic issues, such as the nature of the brain activity underlying consumer behavior and the accuracy of brain-behavior predictions, than it is on the real-world utility of neuromarketing for improving business. From the published research we have learned how packaging design, price, brand identity, spokesman celebrity and other marketing factors separate from the product itself affect neural responses to the product and how accurately those neural responses predict purchasing decisions.(21) Although the information gleaned in such studies is, in principle, obtainable through more traditional behavioral methods of marketing research, in many cases brain imaging appears to provide more sensitive measures of consumer motivations.

Further information on neuromarketing can be found at the Advertising Research Foundation’s Neurostandards project, http://www.thearf.org/neurostandards-collaboration.php.

“Lifestyle” Brain Enhancement
For millennia people have been improving their alertness and mood with naturally occurring substances such as nicotine and alcohol. With the advent of modern psychopharmacology and other methods of altering brain function, the options for nonmedical brain enhancement have expanded.

Medications intended for the treatment of Attention Deficit Hyperactivity Disorder are now commonly used by healthy college students as study aids.(22) The results of a 2001 survey of over 10,000 American undergraduates showed that 7% had used a prescription stimulant nonmedically, and this figure ranged as high as 20% on some campuses.(23)

Anecdotal evidence, along with a variety of informal journalist’s surveys, suggests that many students and professionals have added a range of other psychopharmaceuticals, beyond the conventional ADHD medications, to their work routines.(24)(25)(26)(27)(28) A reader’s poll, taken by Nature magazine in 2008, highlighted these practices among professionals as well as students. A substantial minority of readers reported using drugs for cognitive enhancement, especially among younger readers.(26)

Rapidly gaining popularity as an enhancer is modafinil, initially developed to reduce sleepiness in narcoleptic patients, which also counteracts many of the cognitive symptoms of sleep deprivation in healthy normal users. This enhancer allows for more comfortable and productive “all-nighters.”(24)(25)(29)(30) Some research suggests that modafinil may also enhance aspects of cognition in healthy people who are not sleep-deprived.(31) The ability to control when one gets sleepy, and perhaps even “work smarter” as well as work longer, has obvious lifestyle allure. Although healthy people comprise some of the market for this drug, how much of the market is not known. It is presumably limited by the expense of the drug, the need for a prescription and, last but not least, the unknown long-term effects of cheating one’s body of sleep in this way.

Looking a bit farther out on the horizon, into the coming decades of the early 21^st Century, there are likely to be a number of new cognitive enhancers available.(32) Drugs to suppress unwanted memories are also the object of research and development.(33)

Pharmaceutical approaches to cognitive enhancement have recently been joined by other technologies, including transcranial brain stimulation by magnetic fields (transcranial magnetic stimulation, TMS) or electric currents (transcranial direct current stimulation, tDCS). At present TMS and tDCS are the foci of active research programs on the manipulation of normal and abnormal brain function.(34) In particular, tDCS has earned the attention of researchers in recent years for its ability to enhance a variety of cognitive processes in healthy research subjects, using inexpensive and portable equipment.

Security Applications: Intelligence and Military
National security concerns have driven the development of many technologies, including neurotechnologies.(35) Much of the success of both intelligence and military operations depends on personnel, and specifically on the psychological strength and dependability of personnel, which are functions of the brain.

Of course, information about security applications of neuroscience is often not accessible to the public. On the basis of available information, it has been surmised that brain imaging is likely to be among the methods being studied or used for interrogation.(36) Recent research in cognitive and social neuroscience on mechanisms of deception, inhibitory control and trust has obvious relevance to the development of methods to weaken a subject’s ability to withhold information, for example by inhibiting the activity of brain regions involved in deception(37) or enhancing the activity of neurohormones that promote trust.(38)

Personnel selection is critical for both intelligence and military operations, where loyalty and psychological resilience may be challenged under extreme conditions. Despite its many shortcomings, the polygraph has a long history of use in security screening.(39) Might ERP or fMRI systems for lie detection, as imperfect as they are, be used instead of, or in addition to, the polygraph to provide a degree of evidence on truthfulness? Might brain imaging markers of vulnerability to anxiety or other disorders have a place in screening personnel for the stress of combat?

In addition to assessing or predicting the psychological traits of personnel, there is a strong military interest in enhancing personnel.(40) It is well established that war-fighting personnel use a variety of psychopharmacologic agents to increase concentration, decrease fatigue and counteract anxiety. Amphetamine has a long history in the military,(41) joined more recently by modafinil,(42) and SSRI use is reported to be common among American troops in Iraq and Afghanistan.(43)

Other enhancements under development by the military are quite different from those shared with the civilian world. One example is the US Defense Advanced Research Projects Agency project known as “Luke’s binoculars.”(44) The device uses EEG signals to alert the wearer to his or her own unconscious perception of a relevant stimulus or event. This enhancement of visual attention is projected to be in use within a few years. Another example is a portable TMS device for delivering brain stimulation in the field.(45)(46) A final area of military applications of neuroscience consists of the development of nonlethal weapons(35)(47) that render the enemy temporarily sleepy, confused, in pain or terrified.

In sum, the early 21^st Century has seen a proliferation of new applications of neuroscience. Pharmacologic manipulation of brain function for lifestyle reasons is already commonplace on campuses and in some workplaces. A number of new drugs and nondrug methods for enhancing everything from cognition to libido are on the market or in development. Brain imaging has been commercialized for applications ranging from lie detection to the assessment of romantic compatibility, and all of these methods for monitoring and manipulating the brain have found their way into government uses, from criminal justice to warfare.

Brain Privacy

The uses of brain imaging reviewed here raise a number of ethical and legal issues related to privacy. Many of these issues have been discussed by bioethicists in connection with genotyping.(48) Brain imaging and genotyping are similar in that both involve measures that can be taken for one stated purpose and used for a different one, either contemporaneously or later. However, the brain is a causal step closer to the behavioral endpoints of interest than are genes and may therefore ultimately be more psychologically revealing.(49)(50)(51) In addition, unlike genes, which can be informative about enduring traits only, brain imaging can deliver information about psychological states, including political preferences or intentional deception.

We suggest that brain imaging will raise substantial challenges to privacy but these challenges will not be qualitatively different from others in genetics, psychology and information technology. As the brief reviews of neuromarketing and brain-based lie-detection indicate, these technologies deliver fairly specific types of information, as opposed to being general-purpose “mind readers,” and both require a cooperative subject. Compliance poses a particular obstacle in forensic applications, particularly in the national security environment, so that taking these technologies outside the laboratory in a reliable manner poses significant obstacles. They may deliver information more directly than traditional behavioral methods, but it has yet to be demonstrated that they reveal anything that is, in principle, unobservable by traditional methods.

A final point concerning brain imaging’s threat to privacy is that brain imaging can provide information, but it is up to individuals and society to decide whether and how to use the information thus provided. Questions of whether brain imaging can be used to distinguish between truthful and deceptive statements, whether our brain activity can be used to inform advertising or political campaigns, or whether neurochemical manipulations of trust could make interrogation more effective are separate from the questions of whether we should use these methods to vet testimony, influence choices or obtain answers from uncooperative informants.

Safety of Neurotechnologies

Safety is a crucial concern in the assessment of the ethical, legal and social implications of any neurotechnology, be it psychopharmacology, brain stimulation or MRI involving magnetic fields as high as 9 Tesla. As with privacy concerns, there are precedents that provide a framework for addressing safety-related concerns. Methodologies for assessing risk and for relating risk to benefit have already been developed and used for a wide variety of drugs and procedures within the clinical neurosciences and in other fields of medicine. This includes drugs and procedures intended purely for enhancement purposes, which we will loosely define as persistently exceeding some physiological or statistical norm.

Most people find it reasonable to hold enhancements to a higher standard of safety than treatments for an impairing malady. In terms of risk:benefit ratio, this is because we assume that treatments have greater benefits than enhancements; the value of returning someone to health is greater than the value of making a healthy person even better off. Yet little is known about the long-term safety of using neuropsychiatric medications or neurotechnology for enhancement. Indeed, relatively little is known about the long-term effects, both efficacy and safety, of many neuropsychiatric treatments,(52) and evidence concerning their effects on normal healthy subjects is generally confined to early, short-term clinical trials. The safety of enhancement has recently attracted attention in the neuroethics literature and deservedly so. Of particular concern have been the risks associated with prescription stimulants, including heart attack, psychosis and addiction.(53)(54) Of course, the question of how to weigh safety against potential benefits and methods for assessing safety are essentially the same, whether one is considering cognitive enhancement or cosmetic surgery.

Fairness of Brain Enhancement

Issues of competition and fairness arise mainly in connection with enhancement, as mental ability is a positional good (i.e., one that creates relative advantages), as well as having intrinsic value. In competitive situations, from college admissions testing to chess championships, brain enhancements could confer unfair advantage. One might be willing to accept the fairness of an enhanced admission test score for an individual who intends to continue using brain enhancement, as that score truly reflects the level of ability the individual is likely to bring to his or her studies. However, if someone were to use a temporary enhancer to improve a test score and then stop enhancing, this would be undeniably unfair. Another way that neurotechnology can lead to unfairness is related to socioeconomic disparities. Brain enhancements (48) have so far been more available to wealthier and better connected members of society. In a world where basic healthcare, education and personal safety cannot be guaranteed to all, it seems unlikely that brain enhancements will be equitably distributed.

Finally, while brain enhancement can be helpful to users, it can also put non-users at a disadvantage. Take, for example, the situation that would occur when one worker in an office uses modafinil to extend his work hours on a regular basis and his colleague then feels pressure from the boss to be as productive.(55)

Autonomy and Brain Interventions

Pressure to use brain enhancements need not be implicit, as in the example just given. Fitness for duty in the military can depend on use of psychopharmacology. From one point of view, sufficiently high benefits to society should tip the moral balance in favor of enhancing the wakefulness of pilots or the manual dexterity of surgeons. Yet many of us sense a troubling violation of autonomy in such scenarios. Even if autonomy is not initially threatened, it is not clear what level of dependence may be created. Long-term dependence is especially concerning in the military, when the individual may not be in a position to decide whether to accept a potential enhancement or not.

Similarly, involuntary enhancement of criminal offenders, to improve their personality, mood and self-control presents us with another set of tradeoffs between potentially desirable outcomes and troubling infringement of personal autonomy. If these treatments can enable offenders to live outside of prison and can protect society against crime, then the “benefit” side of the equation is substantial. However, state-imposed psychopharmacology poses a relatively new kind of limitation on offenders’ autonomy. In contrast to the restrictions imposed by incarceration, which mainly concern physical restrictions, brain interventions would restrict offenders’ abilities to think, feel and react as they normally would.

Methodological and Epistemological Challenges

Optimism about the utility of applied neuroscience must be squared with methodological and epistemological problems as well as ethical concerns. For example, functional imaging data are derived from highly structured laboratory conditions using young, healthy and compliant volunteers, often college students. Taking these data into the field where there are inevitably vast and highly varied influences on cognition and emotion carries a wide range of risks.

The epistemological challenges return us to the most basic problems of modern philosophy since Descartes:(56) what is subjectivity and can it be known from the “outside”? What does it mean to deceive and how is self-deception possible? Can we have moral responsibility if our behavior is caused by processes in a physical brain?

Yet it may not be necessary to resolve these philosophical conundrums to achieve practical application of neuroscience, just as unresolved profound mysteries about the nature of the universe have not prevented experimental, applied science from advancing rapidly since the Enlightenment. Thus doubts about philosophical coherence are no excuse for failing to confront neuroethical issues, though the precise form they will take over the next decades may be hard to anticipate.

Dr. Moreno is the author of Mind Wars: Brain Science and the Military in the 21st Century.