NEURODIREITOS E OS FUNDAMENTOS PARA UMA NOVA CONSTITUIÇÃO DA MENTE HUMANA

Abstract

Abstract: This research investigates how algorithms and artificial intelligence (AI) affect individuals' cognitive autonomy through what is termed invisible informational control. This phenomenon involves the collection, processing, and return of behavioral data to users in the form of personalized experiences, subtly shaping decisions and thoughts without perceptible awareness. Such technological dynamics challenge freedom of thought, mental integrity, and fundamental human rights. The central objective is to analyze whether neurorights—emphasizing mental privacy and protection against algorithmic bias—can form a new category of fundamental rights in the contemporary digital landscape.

The ethical warning about the subjugation of the mind to technology was first raised by Metzinger (2009) in the field of neuroethics. Subsequently, Pariser (2011) demonstrated how algorithms create filter bubbles, isolating users in informational silos. Lanier (2018) revealed that such platforms do not merely deliver content but actively shape mental states at emotional and behavioral levels. In the Brazilian context, Pellizzari Jr. and Barreto Jr. (2019) developed the concept of an "algorithmic dictatorship" to describe the structural manipulation of information, while Gleiser (2021) warned of the risks to freedom of judgment and democracy. As Castells (2016) notes, contemporary power no longer operates over bodies, but over informational flows—justifying legal protections focused on cognition.

Within this context, neurorights emerge, formalized by Yuste et al. (2017) through the NeuroRights Initiative, which proposes five guarantees: mental privacy, personal identity, cognitive autonomy, equitable access to enhancement, and protection against algorithmic bias. This proposal was expanded by Ienca and Andorno (2017), focusing on mental integrity and individual agency. More recently, Farahany (2023) has reinforced the need to recognize cognitive liberty as a fundamental right. Additionally, Yuste (2020) argued that emerging technologies are capable of directly interfering with the human mind, thus requiring appropriate normative safeguards.

Institutionally, Chile (2021) was a pioneer in incorporating neurorights into its Constitution. UNESCO (2021) and the OECD (2019) have recommended ethical principles regarding AI, and the AI Act (EU, 2024) has classified neurotechnologies as high-risk. In Brazil, the LGPD and Bill 2338/2023 represent initial, albeit limited, advances. Yuste et al. (2021) also proposed an international regulatory model in the study Towards a Governance Framework for Brain Data.

This study adopts a qualitative nature, dialectical reasoning, and employs comparative and phenomenological methods. Its specific objectives include investigating the algorithmic mechanisms of personalization, analyzing their impacts on mental freedom, and evaluating the legal feasibility of neurorights as tools for protecting human subjectivity.