California Protects Neural Data
Introduction: California’s Groundbreaking Law on Neural Data Protection
On September 28, 2024, California took a significant step in safeguarding mental privacy by becoming the second U.S. state to recognize the importance of neural data protection in law. This new legislation amends the existing California Consumer Privacy Act (CCPA) to include neural data under its definition of sensitive personal information. While California has been a trailblazer in privacy law, this latest move reflects the growing recognition that brain data, much like biometric or genetic data, demands strong legal protections.
What is Neural Data and Why Does It Matter?
The human brain is the source of all our thoughts, emotions, and actions. Technologies today allow us to measure brain activity, tracking brain waves, electrical impulses, and blood flow. These tools are vital in healthcare, aiding in everything from helping paralyzed individuals move to allowing communication through thoughts alone. But the implications of this data go far beyond medical use.
Increasingly, consumers are using wearable devices that help monitor and regulate brain activity for purposes such as reducing stress or improving focus. Employers are using similar technologies to assess employee alertness, and schools are experimenting with ways to track student engagement through brain activity. In short, neural data is valuable—not just to individuals seeking self-improvement but to businesses and institutions looking to tap into the most intimate human experience: our thoughts and feelings.
Understanding California’s New Law
The new legislation expands the CCPA to explicitly cover neural data, defining it as “information generated by measuring the activity of a consumer’s central or peripheral nervous system that is not inferred from non-neural information.” In simple terms, this means data collected directly from the brain or nervous system. Companies are now required to safeguard this information, just as they do with other types of sensitive personal data, such as fingerprints, genetic information, or facial recognition data.
The law prevents businesses from selling or sharing neural data without consent and requires them to de-identify the data to protect individual privacy. Moreover, it empowers consumers with the right to know what neural information has been collected and to request its deletion.
The Impact on the Neurotechnology Industry
California, home to a significant portion of the global neurotechnology industry, is setting the stage for broader discussions around mental privacy. Neurotechnology firms are innovating rapidly, creating devices that help track and influence brain activity for personal, medical, and commercial uses. With this new law in place, companies will face heightened expectations to protect consumers’ mental privacy and handle neural data responsibly.
According to Jared Genser, general counsel to the Neurorights Foundation, which cosponsored the bill, the law “sends a clear signal to the fast-growing neurotechnology industry that robust protections for mental privacy are non-negotiable.” California’s leadership in this area may also inspire national and international efforts to regulate neural data, ensuring privacy protections that extend beyond state borders.
What if your brain activity could be used for hiring actions, performance reviews, and interrogations?
Challenges and Criticisms
While the new law marks a milestone, some experts argue it falls short in fully addressing the complexities of neural data. Marcello Ienca, an ethicist at the Technical University of Munich, pointed out ambiguities in the law’s language, particularly around the protection of data inferences. “Significant ambiguities leave room for loopholes that could undermine #privacy protections, especially regarding inferences from neural data,” he posted on X.
Nita Farahany, a legal ethicist at Duke University, echoed this concern, suggesting that while the law covers raw brain data, it might not fully protect the inferences or conclusions derived from this data—where privacy risks are most concerning. Farahany and Ienca, coauthors of a paper on mental privacy, argue for expanding the definition of neural data to include what they call “cognitive biometrics,” which encompasses a broader range of physiological and behavioral information that can be inferred through biosensors. (Beyond neural data: Cognitive biometrics and mental privacy).
This expanded view of neural data would cover more than just brain activity. For instance, heart rate fluctuations can signal emotions like excitement or stress, while eye-tracking devices can reveal potential decisions or preferences. Such data, already used by companies to uncover deeply personal information, may require additional legislative efforts to ensure comprehensive protection.
A Broader Push for Mental Privacy
The amendments to the CCPA are part of a broader movement to protect mental privacy as new technologies continue to evolve. Neurotechnology and artificial intelligence are converging, allowing unprecedented access to individuals’ inner thoughts and mental states. As these technologies progress, the need for robust privacy laws becomes ever more pressing.
In the United States, Colorado previously updated its privacy laws to include neural data, but California’s legislation is expected to set a powerful precedent for other states and countries. By extending legal protections to neural data, California is not only addressing today’s privacy challenges but is also preparing for future ethical dilemmas posed by rapidly advancing technologies.
Conclusion: Protecting the Future of Mental Privacy
California’s new law on neural data protection represents a critical step in ensuring that as neurotechnology advances, the privacy of individuals remains a priority. The legislation addresses some of the immediate concerns surrounding the collection and use of brain data, offering consumers rights to control, access, and delete their neural data.
However, as technology continues to evolve, so too must the legal frameworks that protect us. Ensuring that inferences drawn from neural data are equally safeguarded will be essential to truly uphold mental privacy. As California leads the charge, it is likely that other jurisdictions will follow, shaping the future of privacy in an increasingly connected, data-driven world.
This new legal landscape marks the beginning of a global conversation on the importance of mental privacy, a frontier that demands ongoing attention, regulation, and adaptation as technologies evolve.
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Revised with the assistance of Chat GPT-4o
Sources:
Marcello Ienca on X: https://x.com/MarcelloIenca/status/1841099624695701531
Patrick Magee, Marcello Ienca, and Nita Farahany - Beyond neural data: Cognitive biometrics and mental privacy
Nita Farahany - Your right to mental privacy in the age of brain-sensing tech (TED Talk)
