The idea of holding people accountable for their predispositions rather than their actions poses a challenge to one of the central principles of Anglo-American jurisprudence: namely, that people are responsible for their behavior, not their proclivities for what they do, not what they think. Were going to have to make a decision about the skull as a privacy domain, Wolpe says. Indeed, Wolpe serves on the board of an organization called the Center for Cognitive Liberty and Ethics, a group of neuroscientists, legal scholars and privacy advocates dedicated to protecting and advancing freedom of thought in the modern world of accelerating neurotechnologies.
As the new technologies proliferate, even the neurolaw experts themselves have only begun to think about the questions that lie ahead. Can the police get a search warrant for someones brain? Should the Fourth Amendment protect our minds in the same way that it protects our houses? Can courts order tests of suspects memories to determine whether they are gang members or police informers, or would this violate the Fifth Amendments ban on compulsory self-incrimination? Would punishing people for their thoughts rather than for their actions violate the Eighth Amendments ban on cruel and unusual punishment?