Hands off my brainwaves: Latin America in race for ‘neurorights’

Legislators in Latin America are carving out new rights for the human brain in response to advances in neurotechnology that make scanning, analysing and selling mental data ever more possible.

In August, 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 — it is the first of its kind — was based on a 2021 constitutional provision that Giradi himself had proposed, which enshrined protection for “brain activity”.

“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; legislators 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.

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 then potentially put it to commercial use.

In May, the US Food and Drug Administration approved human studies for Neuralink’s brain implants, which had previously been tested on animals.

Mined brain data has 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 non-invasive brain censors. And in August, researchers interpreted facial features and other gestures using brain scans of stroke victims.

Over the past year, neurotechnology has been increasingly turning to artificial intelligence (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.

Already similar technologies are finding their way to market.

Neuromarketing — whereby companies test ads and messages while monitoring subjects’ brainwave responses — are now quite common, Farahany said.

And in 2022 Emotiv, the company sued in Chile, launched a partnership with French cosmetics giant L’Oreal to optimise 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 principal of “cognitive liberty”, a new guarantee of self-determination for brains and mental experiences.

Adam Molnar, the co-founder of Neurable, a firm building headphones that take 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.

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 expressed 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 brainwave 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 is automatically sent to a cloud where it can be used for “scientific and historical research purposes”, the company says. Users can opt out of the 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 anonymised before undergoing any research or analysis.

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, but that “any neurotechnology company doing business in Chile is going to have to take more care from now on,” he said.

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 specialises in the ethics of video games, an industry where brain data is increasingly valued.

Other countries in the region are looking to Chile’s model, said José Iglesias, an expert in neurorights and labour in Uruguay, where a similar proposal has been floated.

“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.”

With Reuters