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Functional magnetic resonance imaging (fMRI) has built on a number of technologies, including electroencephalography, magnetoencephalography, positron emission tomography, and single-photon emission computed tomography, to become one of the decade’s most powerful tools for mapping sensory, motor, and cognitive function. Scientists also are using fMRI to study the neural correlates of a range of conditions, characteristics, and social behaviors, including severe brain injury, major depression, schizophrenia, dyslexia, cocaine addiction, compulsive gambling, pedophilia, racial evaluation, deception, cooperation, altruism, and even sexual preference. Poised to move outside the research context, fMRI and its ability to detect correlations between brain activations and sensitive and potentially stigmatizing conditions and behaviors raise a number of confidentiality and privacy issues.

The author’s analysis of these issues begins with the history of the localization of brain function, including phrenology. This nineteenth-century pseudoscience was believed to be capable of revealing character information, including information that individuals may have preferred to keep private. The ability of x-ray, computed tomography, and structural magnetic resonance imaging to peer inside the body intensified privacy concerns, especially as the forensic value of these technologies became known. Today, the media, bioethicists, and other stakeholders are speculating that fMRI may have value in the clinical, employment, insurance, education, evidentiary, criminal justice, and other private and government contexts.

The author responds to these reports by examining the confidentiality and privacy issues raised by fMRI under ancient and modern codes of medical and research ethics; federal and state health information confidentiality laws and regulations; federal regulations governing human subjects research the First, Fourth, and Fifth Amendments to the United States Constitution; the federal Americans with Disabilities Act; the federal Employee Polygraph Protection Act; federal and state rules of evidence; and other applicable ethical and legal authorities. The author’s thesis is that existing ethical and legal authorities create a general framework upon which functional neuroimaging-specific principles and legislation can be built. In the absence of political support for my “neuro exceptional” proposals, physicians, scientists, and others who create, use, and disclose neuroimaging information can establish and adhere to internal policies and procedures that will minimize confidentiality and privacy concerns.

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(May 2006) (unpublished Ph.D. dissertation, University of Texas Medical Branch, Institute for Medical Humanities).