Neuroscientist Larry Farwell doesn’t read minds, but he can usually catch a liar.

For decades, Farwell refined and promoted a system that measures brainwaves to see if someone recalls a specific piece of information. Using sensors set in a headband and visual prompts flashed on a screen, the Seattle-area scientist contends he can show whether, say, a murder suspect has been at a crime scene.

An inventor by trade and showman by inclination, Farwell’s “brain fingerprinting” technology landed him a spot on a Time magazine list of influential innovators and a profile in The New York Times. More recently, he and the tech play a supporting role in the second season of Netflix’s “Making of a Murderer.”

Farwell imagines a day when brain fingerprinting is standard practice in criminal investigations and counter-terror operations. It’s a dream Farwell effuses about even as he’s locked in a legal nightmare.

A 2016 falling out between Farwell and his former business partners has spilled into court in at least five jurisdictions, including Seattle’s federal court. Locked in a fight ostensibly centered on four expired patents, Farwell and his ex-partners at Massachusetts-based Brainwave Science have repeatedly accused one another of fraud.

It’s a spat that Farwell fears may undermine his life’s work.

“Brain fingerprinting is a technique for discovering the truth and proving it,” the 71-year-old said by phone. “In this country certainly and in most places, there’s a high correlation between truth and justice. If you find out the truth, it’s going to serve the cause of justice.”

A headset used for brain fingerprinting. (Brainwave Science Photo)

Farwell was a founding member of Brainwave Science, which is now controlled by his former business partner, Krishna Ika, the corporation’s chief executive officer and chairman.

The men intended to use Ika’s entrepreneurial skills to sell Farwell’s science overseas, targeting European, Middle Eastern and south Asian intelligence agencies.

Instead, the company suffered in the spotlight that fell on it after a onetime board member, former Trump administration National Security Advisor Michael Flynn, was accused of lying to the FBI. Scrutiny flowing from Flynn’s role in the company resurfaced an espionage scheme involving a key investor, Subu Kota, a prominent Boston businessman convicted of providing classified technology to the KGB late in the Cold War.

As that scandal unfolded, Farwell, by then ousted from Brainwave Science, began claiming the company was pushing “counterfeit” brain fingerprinting tech that its employees lacked the expertise to operate. Grinding, and at times bizarre, legal machinations have been underway since.

Use of deception detection techniques remains divisive

Attorneys for Brainwave Science claim that the company paid Farwell for key brain fingerprinting patents when he and Ika formed the company, but that the patents had already been transferred to other companies tied to Farwell. Farwell has denied having control over those other firms.

Brainwave Science has recently been on something of a hiring spree. Among the new additions is Peter Rosenfeld, Northwestern University psychology professor and longtime critic of Farwell’s work.

Brain fingerprinting’s usefulness depends on broad acceptance that has proved elusive, all the more so as two of its chief evangelists have been fighting to discredit each other in court. Farwell worries that the legal fight, and, in his view, Brainwave Science’s continued promotion of technology that can’t deliver, will undercut the technology’s reputation.

The underlying technology isn’t pseudoscience. While there are disagreements about the accuracy of brain fingerprinting and competing systems, the neuroscience underpinning them is generally accepted as valid. Most of the observational techniques make use of advanced medical equipment to measure patterns of brain activity long recognized by the scientific community.

What’s lacking is broad agreement on how much the deception detection tech can reveal, said James Giordano, chief of the neuroethics studies program at Georgetown’s Pellegrino Center for Clinical Bioethics.

Giordano said that the tools won’t see broad use in American courts until there’s scientific agreement about best practices in testing and the tests’ accuracy rates. No consensus exists.

“It’s not that the tools are ineffective tools,” Giordano said. “Their value at this point is less than complete because there still is room for criticism of the technique.”

In the rapidly developing world of neuroscience-based investigatory tools, brain fingerprinting is old school.

During an examination, the test subject dons a headset that can gauge electrical activity in their brain and is then shown a series of words or images. Examiners watch how their brain responds, looking for brainwave patterns that show whether the subject has memories of a sight or idea.

In the model scenario, a murder suspect is shown images familiar only to investigators and the killer. The suspect’s brain response, monitored through the headset, then indicates whether they have memories of the crime scene, results that bolster or undermine suspicions against them.

Brain fingerprinting has its limitations. Tests can only show whether the subject is familiar with specific information or images, Farwell said, not how they came to be so.

The telltale brainwave, the P300, was identified in the early 1960s, and has been considered for deception detection since. Having started refining the science in the 1980s, Farwell credibly claims to be the world’s foremost brain fingerprint expert. He’s also its leading promoter.

Larry Farwell, right, and Steven Avery, left, during the second season of Netflix’s “Making of a Murderer.” (Netflix screenshot)

Farwell has helped to secure a conviction against J.B. Grinder, an Arkansas woodcutter accused in the murders of three girls and a young woman, and exonerate Terry Harrington, an Iowa man released in 2003 after being wrongfully imprisoned for 26 years. On Netflix’s “Making a Murderer,” Farwell is seen testing Steven Avery and finding he lacked knowledge related to the murder for which he’s imprisoned.

To Farwell’s frustration, brain fingerprinting’s use in the courtroom doesn’t extend much farther.

Ethical questions unresolved as tech sprints forward

Surveying federal agencies in 2001, the Government Accountability Office, the investigative arm of the U.S. Congress, found limited interest in brain fingerprinting. Leaders at the CIA, Department of Defense, Secret Service and FBI all said the technology wasn’t particularly applicable in their work. At the time, an FBI assistant director opined that Farwell “did not conduct research that met the FBI’s standards … nor did his research demonstrate the usefulness of this technique.”

A research team at University of Canterbury in New Zealand has undertaken an extensive analysis of Farwell’s technology, the second robust independent review of brain fingerprinting in 30 years. In a recent OneZero piece detailing the study and profiling Farwell, the project leader, Canterbury University Professor Robin Palmer, said the test went well and that researchers have approached New Zealand police to try the system. The study’s results have not yet been subjected to peer review.

The technology has made only “meager incursions” into the legal system, Giordano, the Georgetown neuroscience professor, and co-author Calvin Kraft put it in one 2017 paper. EEG-based investigations, they found, are “typically discounted by judges for (their) lack of general acceptance” within the scientific community. FMRI-based deception detectors – tech a generation newer that uses magnetic resonance scanning to gauge whether parts of a subject’s brain associated with lying are activated by a question or prompt – are used even less frequently, due to similar concerns.

Writing in the academic journal Cognitive Neurodynamics, Ewout H. Meijer, a professor of neuroscience at a prominent Dutch university, faulted Farwell for overstating the depth of research done to judge brain fingerprinting’s accuracy. In other research, Meijer argued newer technologies share many shortcomings with century-old polygraph tests.

Restrictions on the use of neuroscientific tools to examine or even shape minds are rare in much of the world, Giordano said. Vast technological capabilities exist today, capabilities that are only increasing.

Electrodes implanted in the brain are already being used to treat epilepsy, obsessive-compulsive disorder, chronic pain and a host of other medical conditions. Initiatives like the Defense Advanced Research Projects Agency’s Next-Generation Nonsurgical Neurotechnology effort and Elon Musk’s Neuralink will make it even easier to shape brain functions and pass information directly to and from a brain.

Compared to changing minds, reading them is fairly straightforward. Putting that information to work, though, remains a challenge.

In national security, Giordano said, neuroscience-based investigative tools can help create a multifaceted profile of a target like a suspected terrorist. Investigators considering neurological information alongside genetic data, medical records, purchase histories and social media trails could build a “meta-informational construct” enabling them to assess the risk a target poses.

Short-lived partnership spawns enduring feud

Unable to use his technology widely in American courts, Farwell says he spent much of his time working for foreign security agencies. In statements to the court, Farwell describes himself as having extensive connections worldwide, particularly in the Middle East and Asia. It was in part through that work that Farwell connected with Ika, the Massachusetts entrepreneur and Farwell’s foil in the ongoing legal fights.

Farwell and Ika went into business together in June 2012. The firm they created, Brainwave Science, aimed to sell brain fingerprinting hardware and knowhow abroad.

The relationship swiftly soured. By August 2016, Farwell had been forced out after an associate of his sent a letter to Kota, the Boston entrepreneur and investor in Brainwave. The letter’s writer accused Brainwave Science of claiming patents Farwell sold off a decade before, and claimed Ika was at risk of criminal prosecution for fraud.

 In this country certainly and in most places, there’s a high correlation between truth and justice. If you find out the truth, it’s going to serve the cause of justice.

Kota’s role in Brainwave Science, like so much else in the feud, is disputed. He’s described in court papers as an investor in the corporation to which Farwell was a party, Brainwave Science LLC. Ika is referred to in court papers as the sole owner of a new corporation — Brainwave Science Inc. — created in 2016, in which Farwell holds no ownership interest.

Near the end of Farwell’s partnership with Brainwave Science, the company also boasted of adding ex-Director of National Intelligence Michael Flynn to its advisory board. Flynn would go on to serve briefly as President Trump’s national security advisor before resigning for misrepresenting conversations he’d had with the Russian government during the 2016 presidential campaign. Trump in late November issued a blanket pardon to Flynn, who’d previously admitted to lying to the FBI.

The intense scrutiny directed at Flynn and by extension Brainwave Science stoked interest in a mid-1990s prosecution that saw Kota convicted on fraud charges after being caught up in an FBI sting operation targeting a KGB spy ring that sent U.S. defense technology to the USSR in the Soviet Union’s waning days. According to Defense Department statements, Kota and another man met Russian agents in Bermuda, Switzerland and elsewhere, and agreed to sell them information about American missile defense and stealth aircraft technology.

Kota did not return requests for comment.

Farwell’s falling out with Brainwave Science solidified in March 2018, when he offered a declaration filed with a U.S. District Court in Delaware as part of a dispute between Brainwave and a company contracted to sell its services in the United Arab Emirates. The lawsuit was sent in to arbitration, which attorneys for Brainwave Science have said did not result in a judgement against Brainwave.

In his declaration, Farwell accused Brainwave Science of pushing “counterfeit” brain fingerprinting technology using Farwell’s name. Among other claims, he contended that Brainwave Science’s products, unlike his own, have not been subjected to peer-reviewed studies or tested by the FBI and other federal agencies.

Fraud claims fly in fight over expired patents

Brainwave Science has roundly denied Farwell’s attacks on the company’s technology. In a collection of legal actions, the company has also answered with fraud claims of its own. The company’s attorneys have asked a New York state court to permanently enjoin Farwell from deriding Brainwave Science’s products.

The $10 million fraud and defamation claim notwithstanding, Brainwave Science’s litigation against Farwell has centered on four patents, all of which are expired.

In lawsuits currently before the federal court in Seattle, Brainwave Science claims Farwell essentially sold those patents to the LLC when it was formed. But U.S. Patent and Trademark Office records show Farwell didn’t personally hold any of the patents by the time he and Ika formed Brainwave Science.

Farwell, who is acting as his own attorney, secured three of the patents in the mid-1990s and then sold them to other companies with which his associations are disputed. A fourth patent was issued in 2010 and transferred shortly thereafter to one of those companies, American Scientific Inc. Patent Office records indicate the newest patent expired in 2018 due to lack of payment; the older three expired in 2013 and 2014 after hitting their 20-year retirement date.

Equipment used for brain fingerprinting. (Brainwave Science Photo)

While expired patents don’t restrict the use of a technology, they aren’t without value, said Saurabh Vishnubhakat, a professor at Texas A&M University’s law and engineering colleges specializing in intellectual property. A patent holder can sue for infringement even after the patent expires.

“The patent owner can still bring a lawsuit up to six years after the infringing actions took place,” Vishnubhakat said by email. “So for a patent that was infringed up to and including its final days, the lawsuit may indeed come years later — even though, by the time of the lawsuit, the patent will have expired.”

Contacted for comment, a Brainwave Science attorney declined to say why the company has gone to extraordinary lengths to gain the expired patents, or discuss any aspect of the controversy.

In court, the company’s attorneys said Farwell promised to transfer the patents to Brainwave when he was hired, an assertion Farwell disputes. Both sides agree that, in June 2013, papers were filed with the Patent Office that attempted to transfer ownership of the patents from Farwell to Brainwave Science.

Writing the court, Farwell contends those filings were made in error and were unenforceable as neither he nor his company, Brain Fingerprinting Laboratories, held the patents.

The patent dispute was already before a New York state court in January 2020 when Farwell entered into binding arbitration with Neuro Science Technologies, an Edmonds, Wash.-based firm created months earlier after obtaining the patents from another firm. Brainwave Science has since sued Neuro Science Technologies and its president, claiming it is a “shill” company created in a “ludicrous attempt” to hold onto the patents.

Neuro Science Technologies representatives contended in court that the company held the patents, which had passed through at least two other companies since Farwell secured them. The arbitrator ordered that Farwell pay $300,000 for his “willful attempt” to transfer patents he didn’t own while finding that Farwell could use technology covered by the patents.

Brainwave Science was not included in the Seattle arbitration proceeding, even though the company and Farwell were already litigating the patent dispute in New York. The arbitration award was certified in early February 2020 by a federal judge unaware of Brainwave Science’s interest in the matter. That certification, contested by Brainwave Science’s attorneys, was thrown out in December.

In court papers, attorneys for Brainwave Science contend the Seattle arbitration was a farce, and that Farwell has a hidden interest in Neuro Science Technologies. Farwell, Neuro Science Technologies and Life Science & Technology, another entity that previously held the patents, were “orchestrating a manufactured and non-existent ‘dispute,’” attorney Brett Wieburg said in court papers.

Excerpts of depositions given by Farwell appear to show him admitting to ghost writing letters for executives at Life Science & Technology, one of whom now serves — unpaid, according to Farwell’s statements — as president of Neuro Science Technologies. Neither company has a significant online presence, and attempts to reach company executives were unsuccessful.

For his part, Farwell in court papers described Brainwave Science’s claims as “entirely without merit” and reiterated assertions that Brainwave Science Inc. and Ika are subject to fraud investigations in Pakistan, South Africa, Thailand and elsewhere. Farwell took the unusual step, in a proposed “global settlement,” of challenging Ika to travel to Pakistan or South Africa where Farwell would “sign any documents” Ika provided.

Attorneys for Brainwave Science have denied Farwell’s claims related to criminal investigations. They have not yet responded to the settlement proposal.

If, as Farwell claims, the legal actions are simply meant to drain his resources, they appear to be succeeding. In court papers, Farwell said he lacks the financial wherewithal to cover arbitration costs let alone any judgment against him. Pandemic travel restrictions mean he can’t practice his craft overseas, his primary means of support.

Farwell nonetheless describes the patent fight as a distraction.

“What does matter is ensuring that brain fingerprinting is practiced by people who are competent to do it, and that government agencies are not defrauded,” Farwell told GeekWire in a phone interview.

Lawsuits are pending in New York state court and U.S. District Court in Seattle.

LEAVE A REPLY

Please enter your comment!
Please enter your name here