INTRODUCTION
Clinical neurorehabilitation has expanded and transformed into a consumer lifestyle market with the introduction of Non-Invasive Brain-Computer Interfaces (BCIs).[1] Commercially available headbands and earbuds are embedded with electroencephalography (EEG) sensors, and extended reality (XR) headsets actively monitor and capture continuous electrical brainwave fluctuations.[2].
The dynamic neurodata captures real-time emotional valence, cognitive workload, and subconscious reactions, unlike static biometrics that merely confirm identity.[3] This direct, unmediated extraction of neural signals challenges established legal definitions of privacy, exposing the human mind to corporate supervision and monitoring for continuous behavioral profiling.[4]
WHY CURRENT PRIVACY LAWS FAIL TO PROTECT BRAIN DATA
The existing data protection statutes are structurally weak in addressing the probabilistic nature of neurodata, as they were only designed to regulate alphanumeric records and static digital information.
- The Fallacy of Anonymization in Neural Waveforms
Safe-harbor compliance mechanisms and data protection statutes frequently rely upon anonymization.[5] But in neurotechnology, this defense fails. An individual’s resting state EEG recording possesses unique temporal, spectral, and structural signatures that can be identified by distinct cortical morphology.[6] Companies cannot permanently erase the identity markers without destroying the data’s analytical value, as raw brain waves function as a permanent neural fingerprint. It becomes remarkably easy for the algorithm to re-identify specific users.[7]
- Regulatory Gaps and the Flat Classification Under India’s DPDPA (2023)
Unlike Article 9 of the EU GDPR and preceding drafts, India’s Digital Personal Data Protection Act 2023 (DPDPA) removes special categories for sensitive data by repealing the IT Act’s SPDI Rules 2011, which specifically protected biometric and physiological records.[8]
Instead, the DPDPA treats all personal data identically:
- Section 2(t): Broadly defines personal data as “any data about an individual who is identifiable by or in relation to such data”.
- Section 4(1): Applies the same processing standards to all digital data, requiring standard consent (Section 6) or certain approved uses (Section 7).
This flat approach provides private brain waves with the same low-level protection as a phone number. Section 10(1) requires extra audits and allows the government to label major companies as “Significant Data Fiduciaries”. This safeguard is executive-driven and fiduciary-focused, which introduces executive discretion and targets large businesses rather than granting people stronger personal rights over their sensitive data. As a result, tech companies can bypass compliance with medical device regulations and label brain-tracking devices as everyday “wellness” gadgets that harvest subconscious neural signals through standard click-to-agree terms under Section 6(1) without requiring explicit user approval.[9]
- Loopholes in Europe’s GDPR Article 9
Article 9 of the EU General Data Protection Regulation (GDPR) has highlighted data safeguards that strictly restrict the processing of special categories of personal data, such as data concerning health or biometric information used for medical diagnosis or explicit identity verification.[10]
To bypass these rigorous restrictions, commercial Brain-Computer Interface (BCI) makers routinely frame their consumer hardware as a simple lifestyle tool for productivity, sleep tracking, and meditation. Therefore, when data is presented as an arbitrary “wellness score” rather than a clinical diagnosis or authentication, manufacturers evade scrutiny under Article 9 and are free to collect subconscious mental metrics under standard low-friction commercial agreements.[11]
CONSTITUTIONAL DIMENSIONS: THE RIGHT TO MENTAL PRIVACY
The unregulated tracking, collection, and analysis of brain data directly threaten fundamental constitutional rights designed to protect personal freedom and the ultimate privacy of the human mind.
Article 21 and Informational Self-Determination: In the landmark judgment of K.S. Puttaswamy v. Union of India,[12] the Supreme Court held that the right to privacy under Article 21 includes personal autonomy, informational self-determination, and preservation of an inviolable inner sphere of thoughts. True human dignity fundamentally requires the continuous freedom to form ideas, maintain cognitive independence, and experience emotions that are free from external corporate surveillance.[13] Permitting commercial algorithms to silently monitor, interpret, and monetize these raw signals, violates this constitutional guarantee.
Article 20(3) and Protection Against Mental Intrusion: Selvi v. State of Karnataka,[14] In this precedent, the Supreme Court established a vital constitutional boundary and held that using forced neuro-investigative techniques, such as Brain Electrical Activation Profile (BEAP) tests, violates the protection against self-incrimination under Article 20(3) and the fundamental right to privacy under Article 21. The court also firmly established that an individual has the personal liberty to decide whether or not to share their personal thoughts.[15]
However, using the Selvi judgment to restrict private, commercial brain-tracking runs into major legal hurdles:
- State coercion vs. private business: Selvi operated strictly as a vertical constitutional shield, protecting an accused person facing criminal liability against government compulsion under Article 20(3), the right against self-incrimination. However, commercial brain tracking happens horizontally between tech companies and private users, where the real risk is about data monetization and behavioral profiling rather than criminal prosecution.
- Forced extraction vs. user consent: While Selvi addressed forced physical and psychological coercion, commercial neurotechnology relies on extracting brain data through click-to-agree terms. Because Article 20(3) only shields individuals from government-forced testimony, it cannot directly restrict private firms, leaving the issue entirely to ordinary data protection laws.
Even so, Selvi establishes the vital legal principle that an individual cannot consciously filter or control involuntary brain activity. Therefore, clicking “I Agree” on a standard user agreement cannot satisfy the legal threshold for free and informed consent required to collect neural data.
INTERNATIONAL DEVELOPMENTS IN NEURORIGHTS LEGISLATION
To regulate neurotechnology and protect cognitive privacy, governments worldwide have implemented dedicated laws.
- Chilean Constitutional Reform
To explicitly safeguard “neurorights”, in 2021, Chile became the first nation to amend its constitution (Article 19).[16] The amendment mandated that scientific and technological development must protect psychological and physical integrity, brain data security, legal establishment of mental privacy, and personal cognitive identity as fundamental constitutional rights.
- United States State-Level Statutes
Individual states have contributed to enacting their own targeted protections without the help of any comprehensive federal legislation.
- Colorado: To expand protection for sensitive information, Colorado enacted House Bill 24-1058, amending the Colorado Privacy Act to classify biological and neural data as sensitive personal data. This bill ensures that neural signals receive proper safeguards, including mandatory consent and required data protection assessments.[17]
- California: California enacted Senate Bill 1223 to amend the California Consumer Privacy Act (CCPA), officially categorizing neural data from consumer tech as sensitive personal information. This empowers users by granting a right to limit the use, sharing, and retention of their raw and derived brain data.[18]
WAY FORWARD: STATUTORY AND TECHNICAL REFORMS
To prevent unregulated commercialization of human perception, policymakers and technologists must introduce integrated legal and engineering safeguards.
Statutory Classification of Neurodata: Privacy laws must clearly categorize “neurodata”, both raw brain signals and mental insights, and label them as a special category of sensitive biometric data. To obtain this information, one should require separate, explicit, and freely revocable consent rather than bundling it or burying it in standard terms of service.
Mandatory Localized Edge Processing: Regulatory mandates should require consumer brain-computer interfaces to process and analyze brain waves locally on the device itself. Hardware should only share high-level summary tags, keeping neural records private and secure, rather than constantly streaming raw human data and storing sensitive information in cloud storage.
Prohibition of Subconscious Behavioral Targeting: A law should be introduced that strictly bans the use of a person’s mental focus, brain activity, and subconscious emotions for behavioral ad targeting. Tech companies should be prohibited or restricted from monitoring the state of the human brain to predict a person’s behavior, which results in sharing cognitive data with third-party brokers and manipulating their choices.
CONCLUSION
The rapid rise in consumer brain-computer interfaces has posed a direct threat to mental integrity, personal privacy, and individual freedom. Existing privacy laws were made for static data or basic information like names and numbers, and are insufficient for governing continuous real-time neural data extraction.
To safeguard mental liberty, it generally requires three clear steps: creating dedicated legal neurorights protections that mandates strict compliance to process raw brain data locally on hardware and strictly prohibiting the commercialization and sale of cognitive and neural data for behavioral monetization.
Author(s) Name: Akshay N Mahajan (R.L Law College, Belagavi)
References:
[1] Marcello Ienca and Roberto Andorno, ‘Towards New Human Rights in the Age of Neuroscience and Neurotechnology’ (2017) 13(5) Life Sciences, Society and Policy 1, 3.
[2] Nita A Farahany, The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology (St Martin’s Press 2023) 18–24.
[3] Rafael Yuste and others, ‘Four Ethical Priorities for Neurotechnologies and AI’ (2017) 551 Nature 159, 160.
[4] Karen Rommelfanger and others, ‘Neuroethics Questions to Guide Ethical Research in the International Brain Initiatives’ (2018) 100(1) Neuron 19, 21.
[5] Paul Ohm, ‘Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization’ (2010) 57 UCLA Law Review 1701, 1711.
[6] Sébastien Marcel and José del R Millán, ‘Person Authentication Using Brainwaves (EEG) and Maximum A Posteriori Model Adaptation’ (2007) 29(4) IEEE Transactions on Pattern Analysis and Machine Intelligence 743, 745.
[7] Philipp Kellmeyer, ‘Big Brain Data: On the Responsible Use of Brain Data from Clinical and Consumer-Directed Neurotechnological Devices’ (2021) 12 Neuroethics 253, 258.
[8] Digital Personal Data Protection Act 2023, ss 2(t), 4(1), 44(2) ; Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011, r 3.
[9] Medical Device Rules 2017, rr 3, 4; Digital Personal Data Protection Act 2023, ss 6(1), 10(1).
[10] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) [2016] OJ L119/1, art 9.
[11] Paul Quinn, ‘Research Under the GDPR: A Barrier to the Effective Use of Non-Interventional Clinical Trial Data?’ (2017) 7(2) International Data Privacy Law 116, 120.
[12] Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
[13] ibid [323] (Chandrachud J).
[14] Selvi v State of Karnataka (2010) 7 SCC 263.
[15] ibid [244].
[16] Constitución Política de la República de Chile, art 19(1) (as amended by Ley No 21.383, 25 October 2021).
[17] House Bill 24-1058, 74th General Assembly, 2nd Regular Session (Colorado 2024).
[18] Assembly Bill 1008, 2023–2024 Regular Session (California 2024).