The field of neurotechnology is advancing at an extraordinary pace. Devices that interface with the nervous system are no longer confined to clinical settings. Today, they are entering the consumer marketplace, often with limited oversight and unclear ethical guidelines.
As organizations advance in developing and bringing neurotechnology to market, it is essential to consider the impact of collecting and processing neural data. This type of data can reveal deeply personal data about how the human mind works, making it among the most sensitive forms of personal data. This article explores why neural data is considered sensitive personal information and examines the ethical and regulatory risks organizations must navigate.
The Expanding Neurotech Landscape
Neurotechnology refers to tools and devices that interact with the brain or nervous system, often to monitor or influence brain activity. While some advanced technologies—like brain implants—are used in medical settings and follow strict regulations, many newer tools are non-invasive and now widely available to consumers, with much less oversight.
These include products like smartwatches, sleep-tracking devices, VR headsets, and even apps, some of which claim to monitor mood
Understanding Mental Privacy
Mental privacy is the right to keep one’s inner thoughts, emotions, and cognitive processes protected from unauthorized access or interference. It goes beyond physical and even medical privacy. Protecting mental privacy means safeguarding the mental activity of individuals—activities that underpin our autonomy, personality, and sense of self.
Neural data can reveal not just current mental states, but also memories, preferences, and emotional reactions. In some cases, it can predict future behaviors or expose aspects of identity that the individual is not consciously aware of. This includes subconscious or involuntary reactions that a person may not recognize or intend to share.
What Makes Neurotechnology Risky?
Intimate Insights
Neural data is different from other types of personal data. It captures signals from the brain and nervous system that reveal deeply personal details about a person’s thoughts, feelings, and mental state. Because of this, the use of neural data can pose serious risks to an individual’s rights and freedoms
Unintentional Data Collection
Unlike many other forms of biometric data, neural signals can sometimes be collected without a person’s full knowledge or consent. This data can reveal emotional reactions, psychological tendencies, or subconscious responses that people may not intend to share, raising concerns that individuals may unknowingly allow the collection of highly vulnerable information without fully understanding what they are agreeing to
Profiling
Neural data can be used to profile individuals. According to Article 4(4) of the GDPR, profiling is any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person. Such profiling may raise privacy risks and concerns about transparency, consent, potential discrimination, or manipulation. To protect data subjects, Article 22(1) of the GDPR provides data subjects with the right not to be subject to profiling that has legal consequences for them or significantly impacts them in a similar way.
Are Existing Privacy Laws Sufficient?
Because neural data is sensitive and revealing in nature, it requires specific regulations and protections beyond traditional privacy laws. Current regulations often do not fully capture the depth of privacy risks involved in processing this kind of data. Additionally, the potential harms—both those we know and those that are still emerging—make it critical for organizations to take a proactive approach to managing these risks.
Current privacy laws offer only partial oversight for neural data. These include:
- In the U.S., the Health Insurance Portability and Accountability Act (HIPAA) protects mental health records when processed by covered entities or their business associates, but many consumer neurotechnology products fall outside of its scope.
- The Colorado Privacy Act (CPA) was amended to explicitly define neural data as sensitive personal data. It requires businesses to obtain clear, informed consent, post detailed privacy notices, conduct data protection assessments, and refresh their consent regularly.
- The California Consumer Privacy Act (CCPA) was amended to add “neural data” to the definition of sensitive personal information. It grants consumers the right to opt out of data collection and use, requires notice at collection, and mandates disclosure of data retention policies.
- Montana’s Genetic Information Privacy Act will cover “neurotechnology data” and provide protections for the privacy of such data when certain changes take effect in October 2025.
- The GDPR offers strong protections for special category data, including health and biometric data, which may encompass neural data, though neural data is not explicitly named.
- The EU AI Act addresses mental privacy by prohibiting AI systems that use subliminal techniques to manipulate behavior or cause significant harm, providing safeguards for neural data in some situations.
- Chile’s Constitution was amended in 2021 to protect mental integrity and neural data.
At the federal level in the U.S., neural data is not yet explicitly protected or regulated, but several state bills are pending that would address this gap. These developments signal a growing recognition of the need to protect neural data, but globally, regulatory coverage remains inconsistent and evolving.
Embedding Mental Privacy Into Neurotech Development
To build neurotechnology responsibly, organizations should integrate data protection principles from the very beginning. The following best practices can help organizations build ethical neurotechnology, promote transparency, and strive to follow emerging legal and privacy standards
- Treat neural data as sensitive personal data, similar to health or genetic data. Reflect this classification in internal policies and privacy notices. Explain what neural data is in simple, clear language, so users understand when brain signals are being collected. Clear communication is essential for informed consent.
- Explicitly cover neural data in privacy notices. Lack of transparency can undermine user trust and violate ethical or legal obligations, particularly when users are unaware of how their brain data is collected or used.
- Obtain express, informed consent for the processing of neural data where required by applicable laws.
- Exercise caution when transferring neural data to third parties, and obtain consent when legally required, unless exceptions apply.
- Incorporate strong privacy and security measures from the start. Limit data collection to what is strictly necessary. Use encryption and strict access controls to protect neural data. Conduct Data Protection Impact Assessments (DPIAs) for any neurotechnology product or feature that processes neural data.
- Provide users with comprehensive controls over their data, including options to manage what is collected, how long it is retained, and who it is shared with. Include straightforward mechanisms for data correction and deletion.
- Stay informed and aligned with emerging laws and standards, even if they are not yet applicable in your jurisdiction. Establish an ethics oversight process, especially when products influence users’ decisions, behavior, or psychological well-being.
- Avoid behavioral prediction or profiling using neural data unless in compliance with applicable laws.
Final Thoughts
Neurotechnology holds tremendous potential but also comes with significant risks and responsibilities. Because these technologies interact with our most personal thoughts, emotions, and decisions, safeguarding mental privacy goes beyond mere regulatory compliance. It is essential for preserving human dignity and trust.
Many companies overlook neural data in their privacy notices, leaving users uninformed and vulnerable. This gap in transparency can damage trust and create ethical and legal risks. Even if legal frameworks are still developing, ethical practices require companies to avoid manipulative or exploitative applications of neurotechnology. Integrating mental privacy protections into product design, governance, and user communication helps ensure that technology benefits people, not just business interests.
VeraSafe supports organizations in meeting these challenges through professional advice on regulatory compliance and risk mitigation tailored specifically to neurotechnology. Book a free consultation today.
Learn More About Neuroprivacy
In this episode of Privacy in Practice, hosts Kellie du Preez and Danie Strachan welcome Kristen Mathews, Partner at Cooley’s Cyber Data Privacy Practice Group to explore the evolving landscape of mental privacy—its challenges, opportunities, and the critical questions shaping its future
Also available on Apple Podcasts or Spotify
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