Public Administration facing the risks of neurotechnologies to the right to personal identity

Advances in neurotechnology show promise for the repair of cognitive diseases. However, the mass marketing of consumer —not healthcare— products promotes the monitoring, recording, reading, and exploitation of brain activity using brain-computer interfaces. In fact, the latent risk to the brain is sponsored by the potential to manipulate vital functions and experiences (Ausín, Morte & M. Astobiza, 2020), as this organ represents the final frontier of human identity (Yuste, 2018).

Indeed, it cannot be ignored that neurotechnologies alone could be capable of altering people's sense of identity and capacity for self-determination or agency (Kraemer, 2013; Klein et al., 2015; Mackenzie and Walker, 2015; Iwry et al., 2017; Gilbert et al., 2019). In the words of Ienca (2017), identity has a dual aspect: (i) as the right to the preservation of one's mentality and uniqueness; and (ii) as the right to control one's physical and mental integrity. It is well known that personal identity begins with the birth of the living person (legal personality) and ends with the death of the natural person. Nevertheless, the NeuroRights Initiative (2021) aims to strengthen it by incorporating five major groups into the Universal Declaration of Human Rights (1948), including, as far as we are concerned here, the rights derived from personal identity. Furthermore, since February 2025, the Artificial Intelligence Act (2024) has classified behavioural cognitive manipulation as an unacceptable risk in its Article 5.1.a). It therefore seems clear that the legislator intends to prevent unauthorised inferences and alterations by third parties (e.g. private companies) in human decision-making.

On the one hand, certain modifications to identity may be acceptable, such as those that result in therapeutic benefits. Examples include the restoration of memory loss in degenerative diseases such as Parkinson's or Alzheimer's, or the elimination of traumatic memories, such as those suffered by a victim of a crime against sexual freedom and indemnity. Faced with the problem of non-identity (Parfit, 1984), this breach would be for their own good.

On the other hand: what would happen in the case of voluntary modifications of identity that seek to add fictitious or unreal memories that improve well-being? What about erasing certain passages of life, including crimes or administrative offenses? Could it affect criminal or administrative liability in the area of sanctions, exempting or mitigating the responsibility of the sanctioning and disciplinary authority? These approaches could inhibit consciousness and call into question the nature of the “self,” raising the question of whether some kind of limit—and, if so, what kind—or neuroduty should be established, requiring the preservation of psychological continuity (M. Astobiza & de Miguel Beriain, 2024).

In short, this contribution aims to examine the various risks that neurotechnologies pose to the right to personal identity and to question whether their protection and/or limitation by governments and public administrations is necessary.