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Functional Neuroimaging Information: a Case for Neuro Exceptionalism? Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2007 Functional Neuroimaging Information: A Case for Neuro Exceptionalism? Stacey A. Tovino University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Health Law and Policy Commons, Law and Psychology Commons, Legal Education Commons, and the Medical Jurisprudence Commons Recommended Citation Tovino, Stacey A., "Functional Neuroimaging Information: A Case for Neuro Exceptionalism?" (2007). Scholarly Works. 76. https://scholars.law.unlv.edu/facpub/76 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. FUNCTIONAL NEUROIMAGING INFORMATION: A CASE FOR NEURO EXCEPTIONALISM? STACEY A. TOVINO, J.D., PH.D.* I. INTRODUCTION............................................................................................... 415 II. FMRI: A BRIEF HISTORY................................................................................ 419 III. FMRI APPLICATIONS...................................................................................... 423 A. Clinical Applications.............................................................................. 423 B. Understanding Racial Evaluation ........................................................ 424 C. Detecting Deception ................................................................................ 426 D. Understanding Social Cooperation and Altruism ................................ 430 E. Understanding Sexual Arousal and Love ............................................. 431 F. Understanding Ethical Decision Making.............................................. 434 G. Neuromarketing...................................................................................... 435 H. Other fMRI Studies ................................................................................ 437 I. fMRI Hype............................................................................................... 439 J. Definitions............................................................................................... 441 IV. CONFIDENTIALITY.......................................................................................... 442 A. The Common Rule .................................................................................. 443 B. The Privacy Rule..................................................................................... 448 C. State Law ................................................................................................ 457 D. Certificates of Confidentiality ................................................................ 457 V. PRIVACY ......................................................................................................... 460 A. The Clinical and Research Contexts...................................................... 461 B. The Employment Context ....................................................................... 465 C. The Insurance Context............................................................................ 469 VI. IDENTITY ........................................................................................................ 470 VII. A CASE FOR NEURO EXCEPTIONALISM?......................................................... 478 A. A Technological Straw Man? ................................................................. 478 B. Responsible Discussion........................................................................... 480 C. The Analogy to HIV Exceptionalism and Genetic Exceptionalism....... 482 D. Neuro Exceptional and Generic Options ............................................... 486 VIII. CONCLUSION .................................................................................................. 489 I. INTRODUCTION The field of neuroethics has been described as an amalgamation of two branches of inquiry: “the neuroscience of ethics” and “the ethics of neuroscience.”1 The neuroscience of ethics may be described as “a scientific approach to understanding ethical behavior.”2 The law and ethics of neuroscience is concerned with the legal and ethical princi- ples that should guide brain research and the treatment of neurologi- * Assistant Professor of Law, Hamline University School of Law. I am grateful to Bill Winslade, Cheryl Ellis Vaiani, Judy Illes, Ron Carson, and Melvyn Schreiber for their comments on earlier versions of this Article; Maité Morales-Martínez for her outstanding research assistance; and Regina Watson and Barb Kallusky in the Hamline Law Library for their assistance with locating difficult sources. 1. Adina Roskies, A Case Study of Neuroethics: The Nature of Moral Judgment, in NEUROETHICS: DEFINING THE ISSUES IN THEORY, PRACTICE, AND POLICY 17, 18 (Judy Illes ed., 2006). 2. Id. 416 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 34:000 cal disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views.3 This Article is a con- tribution to the law and ethics of neuroscience. No longer new4 or emerging, the burgeoning5 field of neuroethics has an expanding literature that includes several edited collections,6 journal symposia,7 and stand-alone texts.8 Based on topics as varied as neurodegenerative disease, functional neuroimaging, incidental neuroimaging findings, transcranial magnetic stimulation, functional neurosurgical interventions, and cognitive enhancement, neuroethics has developed alongside its neuroeconomics9 and neuropolitics10 counterparts and is followed by triple-disciplinary fields such as law and neuroeconomics.11 In this Article, I focus on one small part of the field of neuroethics: the confidentiality, privacy, and identity implica- tions of advances in functional magnetic resonance imaging (fMRI). Now in its second decade, fMRI identifies localized changes in blood oxygenation that occur in the brain when an individual per- 3. See id. 4. Arthur L. Caplan, Foreword to NEUROETHICS: DEFINING THE ISSUES IN THEORY, PRACTICE, AND POLICY vii, vii (Judy Illes ed., 2006). 5. Jeff Stryker, How Brainwashing Came to Life and Thrived, SAN FRAN. CHRON., Aug. 1, 2004, at E1. 6. See, e.g., SEMIR ZEKI & OLIVER GOODENOUGH, LAW AND THE BRAIN (2006); NEUROETHICS: DEFINING THE ISSUES IN THEORY, PRACTICE, AND POLICY (Judy Illes ed., 2006); NEUROSCIENCE AND THE LAW: BRAIN, MIND, AND THE SCALES OF JUSTICE (Brent Garland ed., 2004); NEUROETHICS: MAPPING THE FIELD (Steven J. Marcus ed., 2002); Wal- ter Glannon, Defining Right and Wrong in Brain Science: Essential Recordings in Neuro- ethics (2007). 7. See, e.g., Symposium, Brain Imaging and the Law, 33 AM. J.L. & MED. (forthcom- ing 2007); Symposium, What Can Neuroscience Contribute to Ethics?, 32 J. MED. ETHICS 63 (2006); Symposium, It’s Time to Go Public with Neuroethics, AM. J. BIOETHICS, Mar.-Apr. 2005, at I-63; Symposium, Neuroethics: An Emerging New Discipline in the Study of Brain and Cognition, 50 BRAIN & COGNITION 341 (2002). 8. See, e.g., SANDRA J. ACKERMAN, HARD SCIENCE, HARD CHOICES: FACTS, ETHICS, AND POLICIES GUIDING BRAIN SCIENCE TODAY (2006); MICHAEL S. GAZZANIGA, THE ETHICAL BRAIN (2005); NEIL LEVY, NEUROETHICS: CHALLENGES FOR THE 21ST CENTURY (2007); STEVEN ROSE, THE FUTURE OF THE BRAIN: THE PROMISE AND PERILS OF TOMORROW’S NEUROSCIENCE (2005); LAURENCE R. TANCREDI, HARDWIRED BEHAVIOR: WHAT NEUROSCIENCE REVEALS ABOUT MORALITY (2005); THE NEW BRAIN SCIENCES: PERILS AND PROSPECTS (Dai Rees & Steven Rose, eds., 2004). 9. See generally Colin Camerer et al., Neuroeconomics: How Neuroscience Can In- form Economics, 43 J. ECON. LITERATURE 9 (2005); Colin F. Camerer et al., Neuroeconom- ics: Why Economics Needs Brains, 106 SCANDINAVIAN J. ECON. 555 (2004); Colin F. Camerer, Strategizing in the Brain, 300 SCI. 1673 (2003); Kevin McCabe et al., Neu- roeconomics, in ENCYCLOPEDIA OF COGNITIVE SCIENCE 294 (Lynn Nadel ed., 2003); Kevin McCabe et al., A Functional Imaging Study of Cooperation in Two-Person Reciprocal Ex- change, 98 PROC. NAT’L ACAD. SCI. 11832 (2001). 10. See generally WILLIAM E. CONNOLLY, NEUROPOLITICS: THINKING, CULTURE, SPEED (Sandra Buckley et al. eds., THEORY OUT OF BOUNDS No. 23, 2002). 11. See generally Terrence Chorvat et al., Law and Neuroeconomics, 13 SUP. CT. ECON. REV. 35 (2005). 2006] NEURO EXCEPTIONALISM? 417 forms a mental task.12 Scientists use fMRI not only to map sensory, motor, and cognitive function but also to study the neural correlates of a number of conditions, behaviors, and characteristics, such as ma- jor depression, schizophrenia, cocaine addiction, compulsive gam- bling, pedophilia, racial evaluation, deception, and even sexual pref- erences.13 Now moving outside the research context, fMRI's ability to detect correlations between brain activations and potentially stigma- tizing conditions and behaviors raises a number of confidentiality, privacy, and identity issues. The neuroethics literature has been calling for an in-depth analy- sis of these issues. Science editor Donald Kennedy suggested in 2002 that fMRI could jeopardize confidentiality and privacy.14 Judy Illes, Director of the Program in Neuroethics at the Stanford Center for Biomedical Ethics, requested legal consideration of the need for addi- tional confidentiality and privacy protections for thought processes in 2003.15 University of Pennsylvania psychologist Martha Farah ex-
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