Do We Own Our Memories?

Click here to watch the TEDTalk that inspired this post.

We like to think we own our memories -- that no one can tamper with them or reveal their hidden contents. Emerging research suggests, however, that under certain circumstances, we can implant false memories, dampen the intensity of emotions associated with memories, and even reveal the content of memories people would prefer to keep secret. As we develop more effective ways to access and alter the memories of others, our memories start to seem less and less our own.

In her recent TEDTalk, Elizabeth Loftus described decades of research showing that we can alter existing memories and even implant false memories of events that never occurred. Subjects given misleading information that they got sick from eating strawberry ice cream in childhood were more likely, on average, to believe that they really were made sick by it than control subjects not given the information. The power of suggestion to alter memories has led many police departments to change their interrogation procedures to avoid inadvertently influencing witnesses. You might have thought we own our memories because no one can implant false ones. But that view is very much in doubt.

Pharmaceutical research suggests another way to tamper with memories. Propranolol, a beta blocker approved by the FDA to treat hypertension, may dampen the emotional intensity of memories of recent traumatic events. Small studies suggest that people who took propranolol after traumatic events like car accidents or assaults were less likely to subsequently develop symptoms of post-traumatic stress disorder. If further studies show that propranolol or some other drug really can dampen memories, trauma victims seeking to recover damages for emotional distress may face some difficult choices. Someday defendants may say that they shouldn't have to compensate trauma victims for emotional distress that could have been avoided with a pill. So you might have thought we own our memories because no one will ever be able to pressure us to pharmaceutically change them. Now that view is very much in doubt.

New methods of brain scanning suggest ways to assess memories despite efforts to conceal them. Several researchers are trying to use functional magnetic resonance imaging (fMRI) to detect lies. At least in artificial laboratory contexts, the research shows promise. There are probably ways to fool these techniques, and courts have yet to admit fMRI-evidence of deception. But give it time. One day, a suspect may lie and say that he never saw an alleged terrorist, but lie detection or other techniques to probe memories will suggest otherwise.

Moreover, under what I call the technological look-back principle, the fact that we may someday have good lie detection technologies already gives you reason to be wary. For if we are eventually able to detect lies with reasonable accuracy, we can ask you questions in the future about events that happened long before. In a sense, the technology will look back to events that predate it, just as we convict offenders for sexual assaults based on DNA evidence that predates modern DNA analysis.

While there is much debate in legal circles about whether lie detection technology could be used against a person in a criminal trial, there are lots of other ways the technology could be used both in and out of court. Politicians are not required to reveal their tax returns, but they frequently do so anyway. Perhaps someday their brains will be scanned for evidence of corruption. And sure, you can tell your spouse that you are always faithful, but if your spouse threatens to leave you unless you get scanned, well, your Fifth Amendment rights won't help you. So you might have thought we own our memories because they will never be accessed unless we explicitly reveal them. That view, too, is very much in doubt.

I have argued elsewhere that we have a certain freedom of memory. It may include rights to dampen memories, enhance memories or memory-retention skills, keep memories private, and be free of certain invasions of our memories, like forced enhancement, forced dampening, or forced revelation. These rights arguably have limits, however. When memories are essential to protecting public safety, perhaps we can justifiably stop people from altering memories or keeping them private. But precisely how hard the law should strive to protect our memories aside, the view that our memories are necessarily our own -- as some fact about the nature of memory -- is one we may already need to forget.

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