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Copyright (c) 2012 U.C. Hastings College of the Law
Hastings Law Journal

Note: The Government Can Read Your Mind: Can the Constitution Stop It?

August, 2012

Hastings Law Journal

63 Hastings L.J. 1627


Mara Boundy*


In George Orwell's novel Nineteen Eighty-Four, the Thought Police monitor the thoughts of citizens, trolling for any hint of forbidden viewpoints. 1 In 2012, functional Magnetic Resonance Imaging ("fMRI") of the brain may accomplish similar ends. Developed to aid cognitive neuroscientists in understanding which parts of the human brain are responsible for functions such as memory, speech, and perception, fMRI brain scans are able to track, in real time, the flow of blood to the various parts of the brain. 2 The fMRI scan's ability to reveal neural substrates of perception, emotion, and movement, as opposed to mere structure, differentiates fMRI from other brain imaging techniques like the CT scan. 3 The imaging reveals the distinct areas to which the subject's blood flows "when making a movement, thinking of a loved one, or telling a lie." 4

Although fMRI was developed for diagnostic purposes, its future use has the potential to be more far-reaching. Some private firms already offer fMRI brain scans to clients who seek risk definition, fraud detection, or more accurate consumer research. 5 In addition, the Defense Advanced Research Projects Agency, a primary innovation engine of the Department of Defense, is also investigating the uses of fMRI brain scans. 6 In a post-9/11 world, where the boundaries of personal liberty are in constant tension with the goals of national security, it is easy to envision the governmental use of fMRI brain scans as a quick and efficient way of identifying terror suspects. 7
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