INTRODUCTION
Brain-computer interfaces (BCIs) are among the most innovative and disputed in the evolving era of neuroscience and technology. There is a promise to blur the boundary between thought and action, and BCIs allow direct communication between the brain and external devices. While the technological potential of BCIs, particularly from explorers like Neuralink, is extraordinary—it offers hope for reestablishing the ability to move, helps in aiding neurodegenerative disorders, and even enables telepathic communication—at the same time, it raises concerns about intense legal and ethical considerations. These revolve around mental privacy, data ownership, informed consent, and the emerging framework of neuro-rights.
UNDERSTANDING BCIS: THE PROMISE AND THE PERIL
BCIs capture and interpret sensory activity to communicate with the systems or control devices. Traditionally used in medical settings, the latest developments—particularly those from companies like Neuralink—aim to combine BCIs into consumer technology. Elon Musk’s Neuralink, for instance, has already implanted chips in humans and dreams of a future where humans can upload thoughts, access memories, or even interact directly with the internet using brain signals.[1]
As technology moves towards a future where analytical functions can be observed, interpreted, and even controlled, it is vitally important to question one’s thoughts. Is there a way to protect one’s mental sovereignty? And did the existing legal foundation even begin to consider this perimeter?
- Mental Privacy in the Age of Thought Surveillance
Mental privacy is generally used to denote people’s right to be protected against the unconsented intrusion by third parties into their mental data and against the unauthorized collection and processing of that data.
Why it matters:
Unlike data we voluntarily input into digital systems, BCIs may access unfiltered neural signals. This data could include unintentional thoughts, emotions, or memories—data that users neither realize they are sharing nor intend to do so.
Legal Gap:
Most data protection laws regulate personal data, including India’s Digital Personal Data Protection Act of 2023 and the EU’s GDPR. But is brain data, primarily unprocessed or non-expressive neural data, personal in the same sense?
Current frameworks do not have specific provisions for neural data, especially when it is collected when the user does not even know about its existence or happening. Because of this, there is a threat that many sources, like governments, employers, or corporations, can infringe on mental privacy. For example, when employers use BCIs to monitor the focus levels of employees in the workplace, it leads to surveillance, which crosses ethical lines.[2]
- Ownership of Brain Data: Who Owns Your Thoughts?
Data ownership in the digital economy is already contested. With BCIs, the pole increases dramatically because the data being collected is not just behavioural but also prudent.
Key Concerns:
- Can neural data be considered intellectual property? If our brain generates certain thoughts, such as a designer piece of art, or a music composed in the head, which the BCI records, who will own the copyrights, your brain or the BCI?
- Do tech companies own the neural data they collect? Neuralink and similar companies may argue that once neural signals are processed and stored in their servers, they become part of their proprietary systems[3].
A Need for Legal Reform:
After the emerging social media data abuse law instated its hands for the safety of the public through data protection laws, similarly, BCI technology will require brain-data-specific legislation. This could mirror the way genetic data is treated under laws like the Indian Biotechnology Regulations or HIPAA in the US. Just as DNA data has special protection due to its intimate nature, brain data may need similar safeguarding[4].
- Informed Consent: Can You Truly Consent to a BCI?
Consent lies at the centre of data ethics. But with BCIs, it is always more complex than anything can ever be.
What makes BCI consent tricky?
- Scope of data collection: Users cannot fully understand the recording being done, which can be subconscious thoughts, emotional thinking, or even quashed memories.
- Implied coercion: Even in employment or military situations, voluntary consent may be pressured.
- Evolution of technology: BCI, being implanted one day, can ask for software updates on the very next day, which change its functions or on the fresh data that it collects, where the question of fresh consent arises.
Ethical Imperative:
Consent frameworks gained from BCIs should be communicated, continuous, and editable. People using BCIS should have the option to exit at any time, and there should be information about every neural data collected to date, where and how it is stored, who can access that data, and for what purposes.
This aligns with the principles of the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, but with higher thresholds of specificity, given the intimacy of the data.[5].
- Neuro-Rights: A New Legal Frontier
As they escalate, leaders and policymakers are always pushing towards a new category of rights: neuro rights. These rights are tailored for the new era of technology, but are human rights introduced to protect and ensure mental sovereignty, identity, and agency.
The Five Proposed Neuro-Rights (by Chilean neuroscientist Rafael Yuste):
- Cognitive Liberty – the right to control one’s mental processes.
- Mental Privacy – the right to keep thoughts private.
- Mental Integrity – the right to be protected from unauthorized alterations to neural activity.
- Psychological Continuity – the right to maintain one’s identity over time.
- Equal Access to Mental Augmentation – preventing inequality in access to BCI enhancement tools.
LEGAL INNOVATIONS:
- Chile became the first country to enshrine neuro-rights in its constitution in 2021[6]. Such a bold move can become an example for other countries that are trying to engage with AI and neuroscience.
- UNESCO and the UN Human Rights Council are exploring how to align neuro-rights with the Universal Declaration of Human Rights[7].
- In India, discussions on AI and fundamental rights are already in motion, and neuro-rights somewhere could fall under Article 21 (Right to Life and Personal Liberty)[8].
Case Study: Neuralink – Innovation Meets Controversy
Neuralink’s brain-chip technology has been successful in gaining global attention. It promises to treat paralysis, restore sight, and even incorporate humans with AI.
KEY LEGAL CHALLENGES:
- Lack of regulatory clarity: While Neuralink is regulated by the U.S. FDA, neuro-data remains uncontrolled
- User autonomy: How much control can implant individuals have over chip updates or data usage?
- Risk of cyber-intrusion: Could malicious actors hack BCI and influence or extract thoughts? This is not science fiction—it is a plausible future cybercrime[9].
The Indian Context: What Lies Ahead?
India, which is already rising as a technical hub, cannot be protected from BCI. Research institutions and startups have started exploring neural interfaces, but the legal system has not yet geared up as it should.
The constitutional right to privacy, as recognized in Justice K.S. Puttaswamy v Union of India,[10] Laid the foundation for identifying neuro-rights under Article 21. The Supreme Court emphasized self-determination, which is critical in the context of BCI surveillance and mental data tracks.
RECOMMENDATIONS FOR INDIA:
- To include neuro-data as sensitive data, the Information Technology Act 2000 should be amended.
- Similar to the biotechnology or pharmaceutical regulatory laws, there should be an introduction to a Neurotechnology Regulation Bill.
- Under Article 21, neuro-rights should be incorporated and aligned with privacy rights.
- Commissions like neuroscientists, lawyers’ ethicists, and tech developers should have interdisciplinary committees to study BCI.
CONCLUSION: A CALL FOR NEURO-CONSCIOUS LAWMAKING
Brain-computer interfaces mark the beginning of a transformative age. With the charm of science fiction, they promise medical breakthroughs. And with great power always comes great responsibility for protecting the essence of what makes us human—our thoughts, sovereignty, and identity.
Now, the time has arrived for worldwide legal systems, including India, to shift from sensitive to bold policymaking. We must be ready for protection before abuse. The future of neurotechnology requires a new jurisprudence—one that places neuro-rights at the core of the human rights discourse in the digital age.
As we have continued to draw vague lines between machines and minds, the real question is not if we can, rather, it is about shall we and how?
Author(s) Name: Kirti Bansal (Karnataka State Law University/ ISBR Law College)
References:
[1] Emily Waltz, ‘Elon Musk’s Neuralink Puts a Chip in a Human Brain’ IEEE Spectrum (30 January 2024) https://spectrum.ieee.org/elon-musk-neuralink-human-brain accessed 15 April 2025
[2] Nita Farahany, The battle for your Brain: Defending the Right To Think Freely in the Age of Neurotechnology (Macmillan 2023) 89–91
[3] Neuralink, ‘Terms of Service’ https://neuralink.com/terms/ accessed 15 April 2025
[4] European Parliamentary Research Service, The Protection of Mental Privacy in the area of the neuroscience (EPRSSTU(2024)757807) https://www.europarl.europa.eu/RegData/etudes/STUD/2024/757807/EPRS_STU(2024)757807_EN.pdf accessed 15 April 2025
[5] OECD, OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (OECD Publishing 2002) https://www.oecd.org/en/publications/oecd-guidelines-on-the-protection-of-privacy-and-transborder-flows-of-personal-data_9789264196391-en.html accessed on 15 April.
[6] Rafael Yuste and others, ‘Four Ethical priorities for Neurotechnology’s and AI’ (2017) 551 Nature 159 https://www.nature.com/articles/551159a
[7] Marcello Ienca and Roberto Andorno, ‘Towards New Human Rights in the Age of Neuroscience and Neurotechnology’ (2017) 13 Life Sciences, Society, and Policy https://link.springer.com/article/10.1186/s40504-017-0050-1
[8] Malavika Raghavan, ‘AI and Fundamental Rights in India: Laying the Groundwork for Neuro-Rights’ (2022)14 Indian Journal of Law and Technology 25
[9] Francis X Shen, ‘Mind, Body, and the Criminal Law’ (2013) 36(2) Harvard Journal of Law and Public Policy 653 https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2013/04/36_2_653_Shen.pdf
[10] Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1.
