Your Brain Data for Sale: Chile's Neurorights Case and the Push for Neural Data Regulation

Your brain signals are increasingly read by consumer wearables, from EEG headsets to cognitive-performance devices. This piece discusses how neural data can reveal attention, stress, and emotions, and why laws have struggled to keep up. It highlights Chile’s August 2023 Supreme Court ruling against Emotiv, which found a worldwide, irrevocable license over Girardi's brain data violated his constitutional right to mental integrity and ordered data deletion. It also traces the global regulatory momentum, noting state privacy laws in the US and the Mind Act proposal at the federal level, and explains how many jurisdictions treat neural data as a grey-area between wellness devices and medical records. The article argues for clearer consent, data-retention rules, and cross-border protections as the neurotech market expands.

Overview: Neural data as a frontier

The Conversation examines how non-invasive neurotechnology is turning brain activity into a new class of consumer data. Wearable EEG headsets, focus-enhancement devices, and brain-activity reading headbands are already on the market and collecting neural signals from ordinary users. Unlike heart-rate data from fitness trackers, brain signals can potentially reveal attention patterns, stress responses, and emotional reactions that users may not fully understand or consent to sharing. This creates a governance challenge because current privacy and medical-device rules were not designed to address live brain data and its potential uses in advertising, insurance, or AI training.

"Neural data raises questions about access, consent, and the purposes for which brain signals can be used." - The Conversation

The Chilean case: a tectonic shift in rights and data practices

In August 2023, Chile’s Supreme Court issued the world’s first ruling on commercial neurodata. The case involved Senator Guido Girardi and Emotiv, a company selling the Insight wireless headset. The court found that accepting the terms of service granted Emotiv a worldwide, irrevocable, perpetual license over Girardi's brain data, stored in the company's cloud, with no practical way for him to export or control his own neural records. The ruling concluded that the data obtained from Insight users overlooked the preliminary requirement to have express consent for its use for scientific research purposes and that information collected for various purposes cannot be used differently without the owner’s knowledge and approval. The court ordered the deletion of Girardi’s data and prohibited the device’s sale in Chile until privacy policies were updated.

"The data obtained from Insight users overlooks the preliminary requirement to have express consent for its use for scientific research purposes. Information collected for various purposes cannot be used differently without its owner’s knowledge and approval." - Chilean Supreme Court

Global momentum: markets, regulation, and the law

The Chilean decision is framed as a turning point with global resonance. In the United States, several states have begun enacting neural-data privacy laws, with Colorado and California leading the way in 2024, and several others pursuing similar measures. At the federal level, a Mind Act has been proposed to bring neurotechnology under a dedicated regulatory framework. The piece notes that private investment in consumer neurotechnology is rising, drawing interest from some of the wealthiest tech figures, and underscores the urgency of a robust policy framework to prevent data from being used in ways users did not anticipate or endorse.

"Under the Mind Act, Congress would establish a dedicated regulatory framework for neurotechnology and neural data." - The Conversation

Regulatory gaps and policy questions

Even where privacy laws exist, they may not neatly cover neural data. The EU’s General Data Protection Regulation could classify brain signals as biometric or health data, which carry stronger protections, but many consumer neurotechnologies sit in a regulatory grey area when marketed for wellness rather than medical purposes. The Conversation highlights core questions: What exactly are users consenting to when they accept terms of service for a neural headset? How long can neural data be retained? Can it be sold to third parties, used to train AI, or shared with advertisers or insurers? The Emotiv case demonstrates that a company may retain data for research with anonymization, sometimes without user awareness or control.

"Under the EU's GDPR brain signals could potentially qualify as biometric or health data, but many devices fall into regulatory grey areas." - The Conversation

Looking ahead: balancing growth with trust

The article concludes that the neurotechnology market is expanding faster than its governance, risking consumer trust and privacy if rules lag. It argues for clear consent mechanisms, transparent data practices, robust export controls, and cross-border privacy protections that can adapt to innovative devices and AI training needs. The Chilean ruling shows that courts can act, but sustained legislative and regulatory action will be needed to harmonize protections with a rapidly evolving market.

"The market is growing faster than its rules, and policy must keep pace to protect individuals' mental privacy and autonomy." - The Conversation