Freedom of thought is known as one of the foundations of a democratic society. Article 39(1) of our Constitution guarantees the right to freedom of thought without any exception, pointing towards its absoluteness. The right receives similar treatment in Article 18 of the International Covenant on Civil and Political Rights (ICCPR) which states: "Everyone shall have the right to freedom of thought, conscience and religion." Though enshrined as a fundamental right, or its presence in international documents, the right often remains neglected within our regular discourse. But thanks to the recent technological developments, this oft-forgotten right has once again gained prominence.

In general, the right to freedom of thought comprises three elements: (a) the right not to reveal one's thoughts or opinions, (b) the right not to have one's thoughts or opinions manipulated, and (c) the right not to be penalised for one's thoughts. This right has to be distinguished from the right to manifest one's thoughts, beliefs or opinions. While the former deals with thoughts as mental processes (forum internum), the latter deals with the same manifested onto the external world (forum externum), e.g., speech. In General Comment No. 22 on Article 18 of the ICCPR, the Human Rights Committee acknowledges this distinction and elaborates the 'absolute' impermeability of the forum internum, compared to the qualified nature of the right in forum externum.

What is more concerning is our daily online activities being tracked by big tech companies to understand our psychological state, likes, dislikes and so on. As the internet has become a staple for our day-to-day communications and social relationships, there seems no way to escape this circle.

For a long time, as hinted above, freedom of thought had received little to no attention from the courts and the academics because of its presumed inviolability for practical reasons. As William Blackstone puts it: "[A]s no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know." But now, new technologies has emerged that can sufficiently penetrate our mind and reveal our thoughts. For example, fMRI can be used to infer suicidal thoughts with staggering 91% accuracy. This indicates the presumed inviolable right is now penetrable by modern technologies.

What is more concerning is our daily online activities being tracked by big tech companies to understand our psychological state, likes, dislikes and so on. As the internet has become a staple for our day-to-day communications and social relationships, there seems no way to escape this circle. Eben Moglen points out the phenomenon this way: "the 20th Century, people were tortured to reveal their thoughts and inform on their friends and family but in the 21st Century you just build social networks, and everyone informs on everyone else."

Today Facebook and Google hold an unprecedented amount of user data, which can be analysed using advanced machine learning algorithms to infer the unobservable inner mental states of a person. On the other hand, research shows that detailed personal information can be predicted based on what pages on Facebook they had 'liked'. Similarly, a 2015 Cambridge University study conducted by Wu Youyou and others revealed that psychological profiling based on Facebook likes allowed researchers more insight into a user's personality than their close friends and family. The power of Facebook to alter the emotional state of users by manipulating their news feeds has also been found in a 2012 research conducted by A.D.I. Kramer and others.

However, the absolute status of freedom of thought posits us before a new dilemma. If new technologies are deemed to violate one's absolute right to freedom of thought, this could hinder the further development of these technologies. But given the general benefits of these technologies, such an approach does not appear desirable. To strike a balance, two options are delineated by Richard Mullender (2000). The first one, driven by precautionary principle, is to recognise "the right as intrinsically valuable while acknowledging that both the right and the culture in which it can flourish are worthy of protection." This approach demands clear reasons for putting it at risk by brain or behaviour reading technologies. The other option, referred to as a qualified consequentialist approach, is to prioritise the beneficial outcomes from such technologies while acknowledging the obligation to put limitations on them for their potential detrimental impact of the freedom of thought.

In this backdrop, it is notable that the 2021 UN Report on Freedom of Thought suggests that technology companies examine how their products or services might infringe the right to freedom of thought and to make it more human rights compliant. The neurotechnology companies are also urged to 'ensure a robust, privacy-focused and human rights-compliant framework for the collection, processing and storage of neurodata'. Thus, it is necessary for the national and international bodies to develop new legal policy and regulatory frameworks to map the right in the new context.

The writer works with Law Desk, The Daily Star.