Lawmakers in Latin America are carving out new rights for the human brain in response to advances in neurotechnology that make scanning, analyzing and selling mental data ever more possible.
Last month, the Chilean Supreme Court issued a unanimous decision ordering Emotiv, a US producer of a commercial brain scanning tool, to erase the data it had collected on a former Chilean senator, Guido Girardi.
The landmark ruling — the first of its kind — was based on a 2021 constitutional provision that Girardi himself had proposed, which enshrined protection for “brain activity.”
Illustration: Tania Chou
“This ruling is of extreme historical importance,” said Rafael Yuste, a brain scientist at New York’s Columbia University who founded the Neurorights Foundation, which has pushed for legal protections for the brain worldwide.
“This is a real foot in the door for future brain jurisprudence,” he told the Thomson Reuters Foundation.
Chile is not alone; lawmakers across the region are now weighing similar provisions, from Brazil to Mexico to Uruguay.
The court’s actions puts Latin America at the forefront of a new race to protect the brain from machine mining and exploitation — a fight that pits fast-evolving science against the essence of what it is to be human.
In August, a constitutional amendment was presented in Mexico’s Chamber of Deputies to establish the right to mental privacy. A similar proposal — which also guarantees transparency around algorithms that might process brain data — is being considered by lawmakers in Brazil.
“The proposal establishes that the privacy and integrity of people, when it comes to mental activity, cannot be violated,” said Arturo Sanchez, a Mexican engineer who helped draft the measure.
Emotiv chief commercial officer Kim Old said in an e-mail that the company will “promptly delete Mr. Girardi’s account and all associated data.”
It has halted sales in Chile, she added. “We will resume sales and support for existing customers when we are able to reassert compliance with Chilean law and regulations.”
UNIQUE THREATS
Recent scientific leaps in brain science are creating “unique threats to mental privacy and freedom of thought that are really unprecedented,” said Nita Farahany, a law professor at North Carolina’s Duke University who studies the legal and ethical implications of neurotechnology.
Big tech firms — including Facebook and Instagram’s parent company Meta, along with Elon Musk’s Neuralink — are developing technology that can detect brain activity and then potentially put it to commercial use.
In May this year, the US Food and Drug Administration approved human studies for Neuralink’s brain implants, which had previously been tested on animals.
Mined brain data have endless potential, be it to better target ads, exploit human moods, sell more stuff or regenerate lost brain function.
Already, researchers at the University of Texas have decoded human thoughts using noninvasive brain censors. Last month, researchers interpreted facial features and other gestures using the brain scans of stroke victims.
Over the past year, neurotechnology has been increasingly turning to AI models, which make decoding human brain activity much easier and faster, Yuste said.
“We’re opening the door to the possible wholesale decoding of the human brain,” he said, creating exciting medical applications, but also urgent ethical and legal challenges.
Similar technologies are already finding their way to market.
Neuromarketing — whereby companies test ads and messages while monitoring subjects’ brain wave responses — are now quite common, Farahany said.
Last year Emotiv, the company sued in Chile, launched a partnership with French cosmetics giant L’Oreal to optimize scents based on customers’ brain activity.
‘WILD WEST’
When it comes to regulating this emerging industry “right now it’s the Wild West,” said Farahany, who has argued for the principle of “cognitive liberty,” a new guarantee of self-determination for brains and mental experiences.
Adam Molnar, the cofounder of Neurable, a firm building headphones that take electroencephalogram (EEG) brain scans and detect users’ moods, said companies are working off existing privacy laws and biometric regulations.
“We’ve made the choice to ask users to opt in to using their data to train our algorthims,” he said.
In 2021, Chile became the first country to enumerate specific brain-related rights in its constitution.
A companion law — which would spell out specific penalties for companies that violate mental privacy — is still being hammered out in the Chilean legislature.
To test the constitutional provision, Girardi bought an Emotiv EEG-measuring headset, which sent his brain data to a remote cloud, where he says it was used to train an algorithm without his express consent.
“Brain data is the next battleground for human freedom,” Girardi said. “And I never gave Emotiv permission to use mine in that way.”
Emotiv advertises its brain wave device as having the ability to detect and monitor various internal conditions — from stress to relaxation to excitement — based on the EEG readings.
Brain data are automatically sent to a cloud where it can be used for “scientific and historical research purposes,” the company says. Users can opt out of data sharing.
Emotiv told the Chilean court that its users already sign consent forms that let it capture their data — and that it would be anonymized before undergoing any research or analysis.
The company spokesperson added that Emotiv follows the EU’s data privacy regime known as the General Data Protection Regulation, as well as local privacy regulations.
TAKE MORE CARE
Lawyer Moises Sanchez, who argued the case in front of the Chilean court, said the ruling would not bar Emotiv from doing all business in Chile.
Yet it would now have to undergo government review and get approval from the authorities that regulate the transfer of medical devices into the country.
He hoped the message would also send a wider message:
“Any neurotechnology company doing business in Chile is going to have to take more care from now on,” he said.
The Chilean court declined a request by Girardi and his lawyers to push Emotiv to alter its privacy policies.
Some experts already worry that neurotechnology firms will respond to such regulatory regimes by simply nudging users into signing over their brain data, regardless of the implications for their privacy.
“There’s a huge commercial interest in creating a world in which you just ask someone to check some boxes, and then you get to use all their brain data,” said Micaela Mantenga, an Argentine lawyer who specializes in the ethics of video games, an industry where brain data are increasingly valued.
Other countries in the region are looking to Chile’s model, said Jose Iglesias, an expert in neurorights and labor in Uruguay, where a similar proposal has been floated.
Regulation is pending — and urgent, he said, as foreign tech companies gather data in Latin America, then store it elsewhere, leaving consumers with little recourse under the law.
“These technologies are being given to us — but we are not producing them,” he said. “We should not be naive enough to think that the tech industry will regulate itself.”
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