Frances M. Green, Paul R. DeMuro, and Eleanor T. Chung, attorneys in the Employment, Labor & Workforce Management and Health Care & Life Sciences practices, co-authored an article in the New York Law Journal, titled “Who’s Reading Your Mind? Exploring the Intersection of Neural Data and Privacy Protections.” (Read the full version – subscription required.)
Following is an excerpt:
Scientists have been collecting neural data from the brain for medical reasons for years, with myriad regulatory constraints in place. But in 2024, technologies are moving fast and furiously into the realm of consumer products.
The NeuroRights Foundation (NRF) reported in April that implantable technology can already decode language and emotions from the brain, and wearable devices are not far behind. Consumer product companies—and indeed, employers—already are, or will soon be able to, monitor brain waves through wearable devices such as headphones or through an employee typing without touching a keyboard or mouse. As the NRF report notes, at least 30 so-called neurotechnology products are available for purchase by the public.
While undoubtedly profitable for those companies, as these technologies develop—and especially when neurotechnologies are combined with artificial intelligence (AI)—ethical and privacy concerns are paramount. As noted in Neurotechnology and the Law: Privacy and Security Concerns, “[W]ith the emergence of neurotechnology, it may now be possible to tap into someone’s brain and read [their] thoughts.” Moreover, as neurotechnology is predicted to become a significant market with substantial economic benefits—$17.1 billion globally by 2026—legislators are beginning to take notice.
On April 17, Colorado’s governor signed CO HB 24-1058, protecting the privacy of individuals’ biological data, protecting the privacy of neural data and expanding the scope of the Colorado Privacy Act (CPA). The CPA applies to legal entities conducting business or producing products and services that are intentionally targeted to Colorado residents and that either (1) control or process personal data of more than 100,000 consumers per calendar year or (2) derive revenue from the sale of personal data and control or process the neural data of at least 25,000 consumers.
