Ethical, Legal, Social, and Cultural Issues

This section includes five key areas of ethical consideration: safety, risk, and well-being; authority, power (including nudging and/or coercion); justice and fairness; agency and identity; and surveillance and privacy. These five areas emerged through the development of the IEEE Brain Neuroethics Framework and capture the main dimensions of potential ethical issues with neurotechnology across the IEEE Brain neuroethics working groups.

Safety, Risk, and Wellbeing

The very highest standards for safety and efficacy have to be imposed on devices for neurological modification and cognitive improvement. For clarity, while neurological modification aims to change brain function directly to address specific deficits, cognitive improvement focuses on enhancing existing mental processes through non-invasive means. Both have valuable roles in education, tailored to the needs and conditions of individual students and specific population groups. Because cognitive capacity, memory, and learning are so fundamental to personal life and social functioning, no degree of risk and harm should be acceptable and it is difficult to reduce it completely. Standards for safety should align with requirements for clinical and consumer devices. However, consumer devices may have lower standards of effectiveness than those found in clinical application.

(a) Known risks. Current safety standards such as IEC 80601-2-26:2019 for EEG, TES, etc. will remain applicable. Higher standards may have to be set as the scale of brain monitoring and modification grows with advances in neurotechnologies. For example, tES techniques like tDCS and CES may require stricter safety protocols to manage potential risks associated with wider use (Fregni et al., 2015) [15]. Combining EEG and fNIRS for real-time brain activity monitoring—a relatively new concept—would require its own set of standards for accuracy and reliability (Li et al., 2022) [16] . Additionally, the development of BCIs highlights the need for comprehensive pre-market evaluations and long-term studies to assess their safety and effectiveness (Zhang et al., 2021) [17]

(b) Minimal invasiveness. Transcranial recording and stimulatory devices at weak intensity levels are currently considered as minimally invasive. Implantations, including meshes and ports for the inner skull surface to rest on the cortical surface, are more invasive and durable, so they accordingly require higher safety and efficacy criteria. Given their invasive nature, these transcranial  devices are unlikely to be adopted in the education market within the near future. Current trends and evidence suggest that educational neurotechnology will continue to focus on non-invasive methods in the near-future to ensure safety and practicality for students (Sattler & Pietralla, 2022) [18]; (Kostick-Quenet et al., 2022) [19]

(c) Reversibility. The ideal of reversibility does not apply to neuroscientific technologies applied for learning, since cognitive improvement and learning retention has to be durable to be desirable. Lasting and even permanent modification to cognitive operations and mental functioning is the point of education. Stable, long lasting changes to cognitive performance in turn requires sensitivity to unwanted side effects, incidental consequences and reversibility, because cortical regions central to our sense of capability, agency, self, and autonomy are unintentionally implicated.

(d) Vulnerable populations. Young adults and children will naturally be targeted users of educational neurotechnology. Given the high potential for cortical neuroplasticity in these age groups, the strictest safety and efficacy standards have to be imposed and enforced. This may include regulatory oversight, with educational institutions working in collaboration with regulatory bodies to ensure neurotechnological tools meet stringent safety and efficacy standards before being implemented in classrooms. Local regulations should also ensure that teachers are adequately trained to use neurotechnology tools and can recognise any signs of adverse effects in students.  Long-term studies looking for unwanted side effects during important phases of brain development will also be advisable. Collectively leading to the development and adherence of ethical guidelines that prioritize the well-being and privacy of the student.

Authority and Power

Informed consent for the use of neurotechnological devices that aid in education should be different for adults or young people. The user should always have the ability to decide whether or not to use the device and have the ability to use the device.

In adult populations, neurotechnology for learning may be considered as a largely voluntary matter. However, protections for children and consumer protections should guarantee that users and their legal guardians are fully informed about the genuine capabilities, limitations, and risks before providing their informed consent.

Young people can be vulnerable to parent, teacher, and peer pressures in school settings. The social contexts where devices are introduced must be supervised carefully and regulated if necessary.

Scenario 1: Middle School Addressing Peer Pressure

A middle school in a wealthy area introduces neurotechnological devices in an attempt to improve overall student performance. The school provides detailed information sessions for students and parents, sharing potential benefits and risks of the technology. Despite the voluntary nature of participation, some students feel pressured by high academic expectations and peer comparisons. To address this issue, the school implements a strict policy ensuring that participation is truly voluntary, trains teachers to recognize and mitigate coercion, and sets up an anonymous feedback system for students to report any peer pressure or concerns. The school also establishes a dedicated committee to monitor the program and ensure ethical, responsible, and equitable use of the technology.

These observations are hardly speculative. One of the industry leaders is BrainCo., which emerged from the Harvard Innovation Lab. Already by 2019, reporting on BrainCo.’s ambitions noted how parents are the intended marketing audience:

The company is hopeful that the Headband will soon revolutionize the way people in different sectors and occupations understand their mental state and improve work efficiency. BrainCo’s biggest bet, however, is on the education sector. Their inspiration for applying FOCUS Headband to education came from the CEO’s own experience of seeing so many school children in China suffer from long study hours but failing to achieve good grades because they can’t focus properly. Born and raised in China, the CEO knows too well that the Chinese tiger parents would be very willing to invest in their children’s education to help them stay ahead amid fierce competition [20]

The use of neurotechnological devices should make a distinction between use to enhance learning in neurotypical populations, or use for treatment of neurological or psychiatric conditions that affect learning.  There is a need to understand the difference between clinical and non-clinical applications of neurotechnology for designers, developers, and users (and their guardians) from a regulatory/legal perspective for educational use. Within education we are not referring to ‘use for treatment’ which falls under the medical part of the framework. The major stakeholders involved in the use of neurotechnological devices in education would include students, parents/legal guardians, educators, school administrators, healthcare professionals, regulatory bodies, and neurotechnology developers. As students will be the primary users in this setting, they must be fully informed about the limitations and capabilities of these devices, while parents/legal guardians would provide informed consent (especially for minors) and also need comprehensive information on the risks and benefits. Educators and school administrators oversee and implement the use of neurotechnology, which should prioritize ethical application and reducing coercion. Healthcare professionals must be consulted and available to differentiate between the clinical and educational needs, ensuring child centered ethical and educationally appropriate use cases beyond the needs of the researcher/developer.

Regulatory bodies must establish and enforce guidelines for the safe and ethical use of neurotechnology in educational settings, while neurotechnology developers are responsible for creating devices with safety, effectiveness, and suitability as top priorities. Unesco’s Ethical issues of neurotechnology 2021 report notes the safeguarding issues within education of privacy, modification, access and availability in relation to equity- “crucial to preserve the future rights of children and adolescents to make autonomous decisions ” [Xx unesco, pg 69]. Additional in recommendation 195 (pg74) calls for the development of improved and more systematic national frameworks for facilitating meaningful Education. Demarcations must be clearly set between the use for learning enhancement and clinical treatment—educational applications should follow guidelines from educational authorities and child welfare organizations, whereas clinical applications should comply with medical regulations (i.e. health authorities such as the FDA or EMA). The conversation in neurotechnologies for education includes many more stakeholders in comparison, but ultimately it is an important conversation to be had. By establishing these distinctions and considerations, we can guide the responsible and effective integration of neurotechnology in educational contexts.

Justice and Fairness

The distribution of neurotechnology in education can be judged against moral principles of equity and justice. However, introducing expensive devices in this educational arena will largely follow familiar patterns, where access by the many lags behind acquisition by the few able to afford them.

Concerns about equity and inclusion will follow the introduction of tES-based learning. Access to this technology, if only determined by the ability to afford the purchase price, will not satisfy ethical and social justice worries about students obtaining fair access. Despite claims advanced about uplifting disadvantaged students [Hidalgo-Muñoz, 2023 [21],  Yue, 2018 [22], the absence of proper policies regarding new technologies may lead to poor academic outcomes and foster educational inequities. Educational disparities among disadvantaged groups would be perpetuated.

Nevertheless, as the reliability and impact of certain devices becomes empirically confirmed and more established, public demand for child-centered availability will grow. Like the roll-out of personal computers in schools during the 1990s and 2000s, school district budgets may be tasked with expanding access, complemented by public programs to subsidize school or parent purchases.

Early adopters, typically affluent and Western, will play a significant role in determining how neurodata is processed by machine learning (ML) algorithms. Since the effectiveness of this technology relies heavily on ML, the training data provided by these early adopters will shape the performance of the models. Consequently, these models might be biased to perform better on data from early adopters, rendering them less effective for other populations, such as non-Western or non-English-speaking groups, who would be considered “out of sample” in terms of the training data.

Agency and Identity

The authenticity of the use/user of neurotechnological devices applied in education must be respected, so that what the person produces in his or her intellectual exercise is his or her own and respected.

Neurotechnological adjustments to overall mental states and targeted cognitive operations that prove to be conducive for learning will inevitably affect, directly or indirectly, wider capacities for practical and social cognition. Precision targeting of “just the smart part of the brain” or any supposedly functionally modular system is largely considered a fantasy within the scientific community due to the inherent complexities involved. The brain is a unique organ—its neural circuits are highly interconnected (as we observe in neuroplasticity), making it challenging to isolate and enhance just one cognitive function without affecting others [Chen & Hong, 2018 [23]. Thus, setting aside the ethical perspective briefly, there is no guarantee that impacting isolated cognitive functions could be achieved without unintended effects, and no studies suggesting this have been published in peer-review journals to date. A person’s learning patterns remain more holistic than discrete; educational advances are simultaneously developments of the whole person and their own self-conceptions [Lee, 2018 [24].

Issues surrounding self-identity may already emerge at the stage of classifying learners who are more likely to benefit from the adjustments delivered by neurotechnological devices. Neurological interventions will require psychologically-informed justifications, but the paradigm for psychological intervention relies on a medical model, identifying deficiencies and prescribing therapies. Consequently, psychopathology is never far from the discussions. The question, “Why does my child have learning difficulties?” quickly veers into “Where are the problems with my child’s brain?” The transition between learning difficulties and ‘problem’  is no illusion, as parents may not understand how approved devices are moving from laboratories and clinics into their child’s classrooms. The field of education already struggled with outdated notions of “special education,” and stereotypes about learners with cognitive and learning disabilities/differences persist. Educational neuroscience’s lack of preparedness for offering a non-diagnostic paradigm raises the immediate issue of unintentionally fostering exclusivist regimes instead of inclusivist approaches.

Further issues involve how educational neurotechnologies do not automatically transfer from clinical populations to classroom settings. Clinical settings often exclude users based on factors such as neurodiversity and  learning differences, meaning these neurotechnologies may not be suited to the diverse needs of a typical educational setting.

Moreover, the continuous collection of student data, especially at pre-university level, has significant ethical and social implications. As students are monitored over time, the data generated by neurotechnology with the ability to track and store for specific other evaluative purposes pose current future risks that we can not yet imagine. Respecting students’ autonomous choices regarding the use of neurotechnologies is essential. This involves assessing these devices and their value not only in terms of achieving learning goals but also in alignment with broader educational values. Ensuring that students have a say in whether and how these technologies are used is crucial for their effective and ethical implementation.

Surveillance and Privacy

There is certainly the potential for users of neurotechnological devices in education to be at risk of having their privacy affected, because brain activity can be constantly monitored indirectly, such as measuring their concentration times and potentially knowing what they would be thinking.

Education neurotech has the potential to uniquely violate neuro-privacy due to interaction with minors in a formative period early in their lives, collecting vast amounts of data about neurological functioning and performance.For example: The ability to ‘read out’ mental state (engaged/not-engaged) in real time is perhaps a privacy concern.  A student might not want these details about their state of mind to be available to their educator. Some additional major issues include privacy, data ownership, transfer of personal data to third parties, and vulnerability to surveillance and hacking. Educational neurotechnology raises specific considerations related to the extended duration, diverse pedagogical contexts, and group settings in which neuroelectric data are collected.

Length of Data Collection Period: Collecting data over long periods enables the creation of high-quality individual profiles of brain activity. This is especially pertinent as it allows for second-by-second mapping of an individual’s brain activity to the content of educational lessons. Such detailed profiling helps identify how different content activates the brain, providing insights into which topics stimulate an individual more or less. This can allow constructing comprehensive databases of topics or contents that are interesting or engaging to each individual. However, there are significant ethical concerns with such detailed data collection. Firstly, there is the issue of privacy, as continuous monitoring and recording of brain activity could lead to intrusive and potentially unauthorized surveillance. Additionally, there is the risk of misuse of the data, where sensitive information about an individual’s cognitive and emotional responses could be exploited for commercial or manipulative purposes. There is also the question of consent and whether individuals fully understand and agree to the extent of the monitoring and the potential uses of their data. Finally, the potential for bias in data interpretation and the consequences of such biases on educational and professional opportunities must be considered, as they could reinforce existing inequalities or create new forms of discrimination.

Multiple Pedagogical Contexts: Data collection across various subjects (e.g., math, physics, grammar) helps in understanding how an individual’s brain responds to different types of content. This comprehensive view of neurocognitive function can predict how a person will react to different learning materials in real-world scenarios. This knowledge (data) can potentially  be used (or abused) in various contexts such as when evaluating job candidates or for further study.

Group Setting: The most unique aspect of educational neurotechnology is its application in group settings. It allows for identifying individuals whose brain responses align with or differ significantly from the group. This data can also be used to predict the quality of social relationships between individuals, as synchronized brain activity has been linked to social network dynamics.

Much of that data could easily get uploaded to the user’s own computer, as well as a manufacturer’s data center.  The surveillance and privacy of an individual’s data is paramount in education. Therefore, understanding what happens to the data is crucial. Questions of data ownership, storage, access, use, and, finally, deletion need to be asked before using neurotechnology in any educational settings. Currently, neurotechnologies in education fall into research categories and are not being used by educational settings themselves. Data governance is controlled by the research party.

The safety concerns and standards shared in other sections provide an initial foundation for legal protections. However, calls for stricter consumer protection laws must accompany the proliferation of neurotech devices. Special privacy laws must be promulgated to ensure “cognitive privacy” (Nita Farahany, 2012, 2023) [25]  and educational autonomy. Raw brain data is uniquely sensitive, and an individual’s brain pattern may be more unique than our fingerprint. This uniqueness has the potential to be identifiable, creating legal, security, and ethical challenges.

Current regulations in Europe govern certain aspects of any neurotechnology that mitigate harms related to privacy and surveillance.

For example, the Children’s Code UK formerly known as the [26]  IEEE P2089™ –‘Standard for Age Appropriate Digital Services Framework – Based on the 5Rights Principles for Children’ –establishes a set of processes by which organizations seek to make their services age appropriate.  This standard, which was written into law as part of the 2018 Data Protection Act, which also implemented General Data Protection Regulation (GDPR) in the UK, mandates websites and apps published after September 2021 to take the ‘best interests’ of their child users into account, or face fines of up to 4% of annual global turnover.

European Union data privacy law defines biometric data as “special categories of personal data” and prohibits its “processing.” The combination of brain Big Data and AI will impact educational neurotechnology. On the EU ratification on artificial intelligence in education, culture, and the audiovisual sector consult  [27] section 30 calls for a future-proof legal framework for AI so as to provide legally binding ethical measures and standards. The data produced and used by AI applications must be especially sensitive for minors. Children constitute a vulnerable group who deserve particular attention and protection from data mining and software manipulations. For example, AI systems should not be making decisions about learning modalities and educational opportunities without full human supervision.

Devices approved for clinical use should not automatically translate over to consumer usage without separate testing on that population. Only if a technique has been experimentally proven to upgrade learning experiences in typical populations can it be regarded as an opportunity to design a learning aid device.

One scandal about neurotech in the classroom has already erupted in China (2019), where schools using EEG monitoring headbands were collecting and storing data to “score” attention levels during classes [4], [28].

The Ryder Review (2022) [29], an independent legal review of the governance of biometric data in England and Wales, developed recommendations directly relating to the IEEE Neuroethics Framework, including recommending

  • new, technologically neutral, statutory framework.
  • regulation and oversight of biometrics should be consolidated, clarified and properly resourced
  • further research on private – public partnerships/organizations gathering and processing biometric data, developing tools, accessing datasets.

Around the world, several key areas for legal issues are easily anticipated:

Data ownership. It may be expected that a legal struggle will emerge between users and manufacturers over the “head space” [the capacity and potential of data generation of an individual user through neurotechnological devices] of cognitive performance as a commodity.

Responsibility and accountability. Manufacturers will naturally bear the burden of refuting claims of mental and learning harms, although users must show that their implementation and usage was appropriate.  In July 2022, the UK agreed to a US plan for sharing police-held biometric data with US border officials. While this agreement specifically covers police data, businesses and organizations can share their data with the police. Consequently, biometric data collected during an academic study might also cross international borders and be subject to foreign legal protocols.

Security. Education neurotechnology has the potential to uniquely violate neuro-privacy because of interaction with minors during early formative ages. Devices that not only register but preserve and store data from device usage deserve the closest scrutiny. Existing privacy laws in almost all countries today do not clearly apply to neurotechnology data collection, so more jurisprudence must emerge.

 Data Storage. The problem of ownership and storage of biometric data is paired with an issue concerning data location. Even “cloud” data is still on servers located in particular countries with different jurisdictions. The storage duration and data availability to third parties (commercial, governmental) will cause legal and regulatory issues. Vast amounts of individual data are recorded within educational settings; Livingstone refers to this as ‘datafication’ (Livingstone, 2018) [30] and calls for specific legislation/policy/code of practice in the protection of young people and their data.

Device Transfer. Devices shared between users, especially those that must be calibrated for particular users, will continue to be problematic. Devices could be designed to work for only one particular user unless fully reset.

Devices that therapeutically aid users with cognitive and learning disabilities/differences should not be equally applied to a general population seeking learning advantages. It must not be assumed that therapies able to improve cognition for mental and cognitive disorders (such as executive control and working memory) would work similarly on nondisabled people linearly to improve their cognition above standard levels. Although this may be a desirable outcome.

Learning neurotechnology/educational neuroscience could not be opened up to all students in a manner that ignores their social surroundings and cultural traditions due to factors of access, cost, rights of the child, and role of the educator/institution. As usage grows, the application of learning neuroscience/neurotechnologies must be carefully evaluated for responsible innovation and genuine social need.

We must consider how the application of neurotechnologies and learning sciences shapes individuals’ lives, both within their peer groups and broader social contexts. The integration of immersive learning and educational experiences using neurotechnology—such as headsets, immersive caves, and augmented reality—has the transformative potential to revolutionize education. These advanced technologies can create bidirectional interfaces, facilitating immersive interactions with brain data. This can lead to personalized, adaptive, and highly engaging learning experiences.

The social implications of these innovations are profound. They could democratize access to high-quality education, bridging gaps between socio-economic classes by providing tailored learning experiences to students from diverse backgrounds. Culturally, they might shift educational paradigms, valuing interactive and experiential learning over traditional rote methods. This shift could foster a generation of learners who are more adept at critical thinking, problem-solving, and adapting to rapid technological changes.

Moreover, the use of neurotechnology in education could reshape social interactions and group dynamics. As students engage with these technologies, they may develop new forms of collaboration and communication, influenced by their immersive experiences. This can lead to the formation of new social norms and cultural practices, as technology-mediated learning becomes a central component of daily life. Consequently, the widespread adoption of these technologies might challenge existing educational frameworks and necessitate new policies and ethical considerations to ensure equitable and responsible use.

This technology, which includes brain-computer interfaces and neural feedback systems, allows learners and educators to interact with digital environments in profound new ways, potentially accelerating skill acquisition and knowledge retention. However, its social, cultural, economic, and legal implications are profound and multifaceted. Especially when considering pre-university education, the rights of the learner (young person) and the responsibilities of the educator or institution must be taken into account both at the time of use and for the future, as brainwave data is unique to each individual.

On one hand, it could democratize education by providing unprecedented access to high-quality learning resources irrespective of geographic, economic, physical, or other barriers. On the other hand, it raises significant ethical concerns, such as the potential for exacerbating existing inequalities, infringing on cognitive privacy, and altering human cognition in unpredictable ways. The integration of neurotechnology in education also necessitates cultural shifts, including the need for new norms around data security, consent, and the ethical use of neural data. Thus, while the potential benefits of neurotechnology in immersive learning are vast, careful consideration of its social and cultural impacts is crucial to ensure it is deployed equitably and ethically.

The rhetoric, see table 5.1 for examples, used to persuade mass-market consumers to enter the new world of educational neurotechnology (or potentially neuro-education) is not hard to predict–the market is already arriving. Misconceptions about brain science and the capabilities of neurotech are understandably rampant, even among journalists, academics, and innovators themselves. The general population is unavoidably vulnerable to buzzwords for ‘neuromyths’ Dekker et al, 2012 [31]; Racieror-Plaza et al, 2023 [32], and their repetition from claims made by manufacturers and marketers.

 

Table 5.1. The Rhetoric of Advertising Claims for Neuromodulatory Devices

Terms The Phrase The Claim  Target Market The Source
“neuroplasticity” “improve the connectivity between neurons in the brain (also known as neuroplasticity).”  “… during a treatment session, it’s encouraged to practice some form of mental training while the device is in use or immediately afterwards” learners of

any age

Can tDCS Help You Meditate? – Caputron

 

“sculpting” “sculpting the learning brain”

 

“students’ brains can be sculpted to cope with contemporary sociotechnical change” children in poverty Wearable Real-time Brainwave Training in the Classroom – Connected Learning Alliance

 

“synchrony” “brain-to-brain synchrony” “Students’ brain-to-brain group synchrony predicts classroom social dynamics” children in groups Brain-to-Brain Synchrony Tracks Real-World Dynamic Group Interactions in the Classroom: Current Biology

 

“enlightened” for a “growth mind-set” “EEG neuroimaging has even been used to visualize the brain ‘enlightened’ when students have adopted a ‘growth mindset’.” students needing a boost Neurotechnology and Education – Online Tesis

 

“concentration” “banish distractions” “Better science for better focus” students in busy places Neurable headphones
“mindset”

 

 

 

 

“managing your mindset” “Train your brain for better focus and a calmer mind.” adult learners FocusCalm – Biofeedback Device, EEG Headband, Brain Training

 

“healthier” “brain health” “Engineered by experts to make your brain healthier” anyone thinking better Product – Mendi.io

 

Kernel

 

“mindfulness control” “stress control and improved mood” “the Muse brain-sensing headset improved the focus and behavior of 8th grade middle school students [40% minorities], measured by the number of office referrals for disciplinary action.” disadvantaged students KSU Research Finds Muse Meditation Drastically Reduces Middle-School Student Office Referrals | Business Wire

[Interaxon Co. press release]
“discipline”

 

 

“troublesome behaviors” “to carry out the pilot, she worked with the school’s principal, social worker and counselor to select 20 8th graders who had the most office referrals for their grade level.” students in, or from, disadvantaged situations Brainwave Headsets Are Making Their Way Into Classrooms—For Meditation and Discipline | EdSurge News

 

“docility”

“discipline”

“correct discipline” “Muse is … tasked with training students’ brains for docility and the correct discipline.” students needing discipline Wearable Real-time Brainwave Training in the Classroom – Connected Learning Alliance

Neurotechnology devices designed to assess individual learning preparedness and performance should not be crafted or marketed in a way that allows simplistic classifications into separable and rankable types of students prior to actual learning outcomes [33].  What counts as sound learning and educational advancement can vary across different cultures. While deficits in learning ability may be due to underlying developmental challenges requiring therapy, neuro-assessments conducted for improved learning should resist a reduction to any psychiatric or medicalized categorization. Such categorizations contribute to societal injustice and cannot translate well across cultures.