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California adds extra protections for neurological data

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Start-ups and tech giants alike plan "neural interfaces"

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Experts urge a more holistic approach to privacy

By Avi Asher-Schapiro

LOS ANGELES, Oct 10 (Thomson Reuters Foundation) -

E lectronic devices that capture and analyze brain signals are

becoming more mainstream, with brain-reading meditation apps,

brain-computer video game interfaces and even attention-tracking

headphones hitting the consumer market.

Meta, the owner of Facebook and Instagram, last

month publicly tested an augmented reality interface where users

navigate the world with neurological signals picked up from a

wristband.

A law signed by California Governor Gavin Newsom in

September will add new layers of protection for the kinds of

data these devices capture.

It is one the most significant advances in

privacy regulations for this emerging strata of consumer data,

said Josh Becker, the state senator who authored the bill.

"This is a new frontier of privacy rights," he told the

Thomson Reuters Foundation.

The law defines neurological data as "sensitive personal

information," a class of data that includes DNA, precise

geolocation and other highly protected data in California.

According to Becker, companies will now have to disclose how

they intend to use that data, and Californians will now be able

to request companies delete it or direct them to limit sharing

it, among other protections.

It will not bar companies from collecting the data or

offering products and services that rely on it. "These are

common sense restrictions," he said.

California - the most populous U.S. state and home to

Silicon Valley - often sets the bar for national tech policy.

"We hope these new rights become the floor for how

authorities look to regulate neural data going forward," said

Jared Gensler, a lawyer with the non-profit Neurorights

Foundation, a privacy advocacy group that helped draft the

legislation.

BRAIN RIGHTS GO INTERNATIONAL

Efforts to protect neurological data have proliferated in

recent years, as electronic devices available directly to

consumers become capable of capturing medical-grade brain data

similar to what neurologists would use to diagnose patients.

Experts at the Neurorights Foundation and other groups say

sensitive data could be used to decode users' mental states

without their permission.

Chile enacted legal and constitutional protection for brain

privacy in 2021, and similar rules have been proposed in

other Latin American countries, including Mexico, Brazil and

Uruguay.

Last year, Chile's Supreme Court became the first in the

world to order a neurotechnology company to delete a user's

data.

The U.N. Educational, Scientific and Cultural Organization

(UNESCO) too is taking up the issue.

In August, a panel of UNESCO experts released a new draft of

recommendations for how countries around the world should devise

legal protections for the brain in the face of rapid technology

advances - particularly in artificial intelligence - that enable

the reading and decoding of brain information.

STATE BATTLES

The law in California came on the heels of a similar bill in

Colorado, which was also backed by the Neurorights Foundation.

In both states, the laws saw pushback from tech industry

groups, and there was significant disagreement among experts

about what the law should cover.

TechNet, which represents big tech firms like Meta,

Apple ( AAPL ) and Amazon, tried to limit the scope of the California

bill to only include data from "central nervous systems."

But Becker told the Thomson Reuters Foundation that it was

important that the law applied to both central and "peripheral"

nervous system data, as neurological signals taken from other

parts of the body, such as the wrist, can also provide insight

into mental states.

The final version of both bills eventually did include the

peripheral nervous system.

But Nita Farahany, a professor at Duke Law School working on

the UNESCO framework, said she is concerned that the law is

still drawn too narrowly, as it exempts eye tracking and other

signals that can be used to decode a person's thoughts.

That "leaves a huge gap," she told the Thomson Reuters

Foundation.

Becker and the Neurorights Foundation wanted to focus

narrowly on neural data, which they say is particularly

sensitive.

Increasingly companies are building devices to capture a

range of neurological inputs.

Just last month, a neurotechnology company called Neurable

released headphones that decode EEG readings of the brain to

gauge a user's focus.

Adam Molner, a co-founder of Neurable, told the Thomson

Reuters Foundation that the company already handles data in a

way that complies with the California and Colorado laws.

He hopes that future regulations might give consumers even

more choice, saying laws that only regulate what should be in a

company's privacy policy have "the potential to create just

another checked box," that consumers pay little attention to.

In September, Meta previewed AR glasses called Orion that

read neural signals from users' wrists. Meta did not respond to

a request for comment about how Orion would comply with

California law.

Gensler, the lawyer with the Neurorights Foundation, said

that the launch of Orion could be one of the first times a major

tech platform is forced to comply with a neurological privacy

regulation.

Earlier in the year, the Neurorights Foundation released a

report analyzing the privacy policies of 30 consumer neurotech

devices and found major privacy gaps. Half allowed companies to

broadly share a user's brain data with third parties.

(Reporting by Avi Asher-Schapiro; Editing by Ayla Jean Yackley.

The Thomson Reuters Foundation is the charitable arm of Thomson

Reuters. Visit https://context.news/)

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