Neuroprivacy and Brain Data: The Next Frontier of Fundamental Rights

1.Introduction

Advances in neurotechnology promise transformative improvements in medicine, communication, and human performance. Brain-computer interfaces (‘BCIs’) and related devices can now decipher neural impulses, allowing paralyzed people to communicate and restore sensorimotor functions that were previously lost due to injury. However, this same potential poses serious legal and ethical concerns about the rights to privacy, autonomy, and human dignity in an age when neurological data — the raw outputs of the brain’s electrical and cognitive processes — can be accessed, gathered, analysed, monetised, and even controlled. This paper contends that neuroprivacy and brain data protection must be recognized as fundamental rights, necessitating both legal innovation and a normative foundation in existing human rights frameworks.

Neuroprivacy goes beyond basic data privacy. Brain-derived data can show emotional states, cognitive processes, intents, and mental health issues, all of which are fundamental to being a person. Existing regulatory regimes, like as the EU’s broad Data Protection Regulation (GDPR), address sprawling personal data but do not take into account the special sensitivity of brain data. This regulatory gap menaces autonomy and mental privacy in unprecedented ways, thereby suggesting that neuroprivacy — and the broader category of neuro rights — should be critically important to future rights protection.

1.1Understanding Brain Data and Neuroprivacy

What Is Neural Data? cerebral data, additionally recognized as neurodata or brain data, refers to any digital information derived from cortex activity, whether through imaging, electrophysiological sensors, BCIs, or other means. It encompasses both conscious and unconscious signals: those produced organically and those reflecting internal cognitive asserts that are not under conscious control.¹ The ability to capture and interpret brain impulses converts internal mental processes into machine-readable news or information. Neural data, unlike names or addresses, can reveal emotional responses, mental processes, intentions, and even identity attributes, implying that its misuse could have serious consequences for autonomy and human dignity.

 1.2 Define Neuroprivacy. 

Neuroprivacy is the aspect of privacy that focuses on protecting neurological information against unauthorized access, inference, or exploitation.

The capacity to record and interpret neural signals transforms internal mental states into machine-readable data. Unlike names or addresses, neural data can reveal emotional responses, thought processes, intentions and even identity traits, meaning its misuse could deeply impact autonomy and human dignity.

The ability to capture and interpret brain impulses converts internal mental processes into machine-readable information. Neural data, unlike names or addresses, can reveal emotional responses, mental processes, intentions, and even identity attributes, implying that its misuse could have serious consequences for autonomy and human dignity.  Neuroprivacy is the aspect of privacy that focuses on protecting neurological information against illicit access, inference, or exploitation. It is based on the concept of mental privacy, which holds that individuals should have control over who has access to and interprets their cognitive systems information, as well as the premise that the inner workings of the mind should be constitutionally safeguarded.

Unlike traditional data privacy, neuroprivacy must deal with information that: Is integrally related to identity and agency. The acquisition may occur without conscious knowledge, and Has the potential for inferential misuse, such as decoding preferences or vulnerabilities. This distinguishing attribute lifts neurodata beyond normal categories of “sensitive personal data” and points for its recognition as an essentially protected category.

2.The Legal and Ethical Gaps in Current Frameworks

2.1 Limitations of Existing Data Protection Laws

Current data protection rules, such as the EU’s GDPR, treat brain data as personal data but do not give particular and robust protections based on the distinctive features it possesses. Under GDPR, personal data are generally defined as any information feeling connected to an identifiable individual, which includes neurological data.  However, the rule was not created with direct brain interfaces in mind, resulting in interpretation gaps regarding scope, acknowledgment, and data categories. Non-medical BCIs, for example, consumer neurotech headsets marketed for gaming, wellness, or meditation, frequently evade tight regulation and can circumvent safeguards designed for sensitive health data.

Non-medical BCIs, for example, such as consumer neurotech headsets sold for gaming, wellness, or meditation, frequently evade tight regulation and can circumvent safeguards designed for sensitive health data. Companies may acquire, keep, and distribute neural data with little transparency, and current regulations frequently fail to provide specific, informed consent tailored to the hazards associated with brain data gathering. In the United States, regulatory initiatives are still fragmented. Some states, such as Colorado and California, have begun to classify “neural data” as a distinct category, with greater privacy safeguards, but there is no comprehensive federal standard. This patchwork approach exposes individuals and accentuates the need for a uniform rights-based framework.

2.2 The Ethics of Commercial Exploitation

Without strong safeguards, business entities are likely to use neurological data as a market commodity. Dystopian scenarios are possible: insurers might derive cognitive risk factors from cognitive profiles; employers could screen applicants based on neurocognitive specific characteristics; and social platforms might commercially exploit users’ mental states for the targeting of behavioral factors The marketing of brain data raises issues about autonomy and freedom of thought: if internal cognitive states are captured, processed, and monetized without proper safeguards, individuals may lose control over the most personal aspects of their identity. Law reform is therefore more than just a technical matter; it is a moral responsibility to defend human dignity.

3 Neurorights as a Conceptual Foundation

3.1 Core Neurorights Principles

In reaction in response speculations about neuroprivacy, scholars and ethicists have advocated a number of universal neurorights. These usually include: Mental privacy is the right to control the access and use of one’s neurological information. Cognitive liberty symbolizes the protection against coercive or nonconsensual manipulation of the workings of the mind. Mental Integrity: Prevents damaging or illegal neural treatments. Personal Identity Protection: Ensuring that neurotechnology is not detrimental to a person’s sense of self or autonomy.¹¹ These neurorights are based on classic human rights principles, including the right to privacy, freedom of thinking, and personal autonomy, but they go beyond that to address growing technological threats.¹²

3.2 International and Comparative Developments

Some jurisdictions have taken pioneering measures. Chile’s constitutional amendment of 2021 expressly protects activity in the cerebral cortex and brain data, and its supreme court had instructed the deletion of illegally huddled neural data, demonstrating that neuroprivacy can be constitutionalized.¹³ Similar appropriate legal action have emerged in Latin America and the United States, and UNESCO has approved worldwide ethical criteria for neurotechnology that emphasize mental privacy and informed permission.¹⁴ At the global level, there is growing understanding that traditional privacy safeguards are inadequate. A UNESCO ethical framework, for example, recognizes neurological data as a new category that necessitates specific safeguards and emphasizes the inviolability of the human mind as essential to human dignity.¹⁵

4. Reconceptualising Privacy for the Neural Age

4.1 Beyond Data Protection: Mental Privacy and Cognitive Liberty

Unlike traditional data privacy laws, which focus on the gathering and application of information, neuroprivacy places a larger emphasis on mental privacy – the freedom to regulate the very elements that constitute cognition and thought. Mental privacy must preserve both conscious and unconscious brain data and prohibit the inference of sensitive mental states without permission to track users. Furthermore, cognitive liberty protects individuals from forceful manipulation of their thoughts and mental processes, as well as unwanted data collecting. This dimension is closely related to freedom of thought, which is a fundamental human right recognized by key international treaties. Including such safeguards in constitutional or statutory frameworks would acknowledge neurological data as inextricably linked to human autonomy rather than as a subset of personal data.

5. Neuroprivacy and Fundamental Rights Jurisprudence

5.1 Right to Privacy and Freedom of Thought

The right to privacy has long been seen as an essential cornerstone of constitutional democracies and international human rights codes of behavior. Unpredictability interference with privacy is prohibited under the influence Articles 12 of the Universal Declaration of Human Rights (UDHR) and 17 of the International Covenant on Civil and Political Rights (ICCPR). However, neurotechnology challenges the validity the scope and depth of these safeguards by allowing access not only to personal areas or communications, but also to persons’ inner cognitive domains.Article 18 of the ICCPR protects freedom of thought, conscience, and belief, which is viewed as an unrestricted right.² Neurotechnological access to brain data may jeopardize this absolute protection by allowing external actors to infer, envisage, and alter the functioning of the mind.

5.2 Human Dignity and Personal Autonomy

Human dignity is the normative foundation of most constitutional institutions and human rights legislation. The German Federal Constitutional Court of the for example, has consistently viewed dignity as arguing against an individual’s right to self-determination. Brain data extraction without genuine consent jeopardizes this autonomy by circumventing conscious control and leveraging involuntary neural activity. From a dignity standpoint, using brain data as a commercial commodity reduces people to mere sources of extractable wealth. This commodification weakens the intrinsic value of the human intellect and goes against the Kantian idea that people must be viewed as ends in themselves.⁵ As a result, neuroprivacy is more than just a privacy worry; it is a dignity necessity that necessitates increased constitutional safeguards.

6. Neuroprivacy in the Indian Constitutional Context

6.1 Right to Privacy under Article 21

Neuroprivacy in India’s Constitutional Context 6.1 Right to Privacy under Article 21. In Justice K.S. Puttaswamy (Retd.) v Union of India, the Supreme Court of India acknowledged privacy as a basic right guaranteed by Article 21 of the Constitution. The Court specifically recognized informational privacy, decisional autonomy, and bodily integrity as fundamental aspects of the right to privacy. Neural data involves all three dimensions at once. The Puttaswamy decision emphasized the importance of privacy in protecting an individual’s “inner sphere”. Neurotechnology directly enters this inner world by accessing brain impulses that can reveal preferences, emotions, and intentions. According to Puttaswamy’s proportionality test, any state or private interference with brain data must be legal, necessary, proportionate, and subject to procedural protections.⁷

6.2 Digital Personal Data Protection Act 2023

India’s Digital Personal Data Protection Act 2023 (DPDP Act) is a significant step forward in personal data regulation. However, the Act does not clearly identify brain data as a discrete category that requires additional protection. While the Act protects sensitive personal data through consent requirements and purpose limitations, it may be insufficient to combat involuntary neural data collection and inferential misuse.⁸ Furthermore, the exemptions afforded to the State under the DPDP Act present difficulties when applied to neurotechnology. Surveillance or national security justifications could theoretically apply to brain data, jeopardizing mental privacy. A neuro-specific regulatory framework or explicit statutory recognition of neuroprivacy would thus be necessary to harmonize Indian law with evolving worldwide standards.

7. Risks of Surveillance, Manipulation and Discrimination

7.1 Neuro-Surveillance and State Power

The employment of neurotechnology for law enforcement, military, or national security purposes carries significant risk. If brain-based lie detection technology and cognitive monitoring tools are used without strict safeguards, they may result in forcible extraction of thoughts, infringing the right to self-incrimination and free thought.⁹ Unlike traditional monitoring, neuro-surveillance occurs below conscious awareness, rendering resistance or permission illegitimate. This presents serious constitutional difficulties, especially in democratic cultures where the legitimacy of state power is dependent on respect for individual liberty.

7.2 Algorithmic Bias and Neuro-Discrimination

Neural data-driven algorithms are prone to bias, inaccuracy, and discriminating favourable outcomes. Individuals may be discriminated against based on imputed cognitive qualities rather than actual behaviour if neural profiles are employed in employment screening, insurance underwriting, or criminal risk assessment. Such techniques run the risk of entrenching new types of prejudice based on neurobiology. The opacity of neural algorithms, also known as a “black box,” exacerbates accountability issues. Individuals may be unable to challenge adverse outcomes resulting from brain data processing, undermining procedural justice and equality before the law.

8. International Developments and Soft Law Responses

UNESCO has emerged as a crucial actor in constructing ethical guidelines for neurotechnology. Its Recommendation on the Ethics of Artificial Intelligence emphasizes mental privacy, informed consent, and safeguards against cognitive manipulation. These concepts, while not legally enforceable, help to shape customary standards and have an impact on domestic legislation. UNESCO’s approach views neuroprivacy as essential to human dignity and advocates for international cooperation to minimize regulatory arbitrage. This is especially relevant considering the multinational nature of neurotechnology enterprises and data flows. Despite rising awareness, there is no binding international convention governing neuroprivacy. Scholars argue for either a new international instrument or a revision of existing human rights treaties to clearly incorporate mental privacy and neurorights.

9. Reconceptualising Consent and Governance

Informed permission requires comprehension, voluntariness, and capacity, which may not be met when neurological data is acquired passively if future uses are unpredictable. Enhanced consent procedures must therefore include: 

• explicit, detailed consent for each type of brain data;
• ongoing consent mechanisms that allow withdrawal; and 
• strict constraints on secondary usage and data sharing. Without such safeguards, permission risks becoming a legal fiction that fails to guarantee mental autonomy. Neuroprivacy protection requires strong institutional systems, such as independent regulators, ethical review boards, and judicial control. Transparency and auditability of neuro-algorithms are critical to ensuring accountability and public trust. Data protection agencies must have technical expertise to analyze  neurotechnology concerns, and courts must be willing to modify constitutional principles to address cognitive harms.

10. The Future of Neuroprivacy as a Fundamental Right

The trend of neurotechnology predicts that brain-data-driven programs will become more prevalent in daily life. Without aggressive legal action, neuroprivacy could evolve into a victim of technological determinism. Recognizing neuroprivacy as a fundamental right would affirm the sanctity of the human mind, expand protections for confidentiality to the cognitive domain, prevent exploitation and discrimination, and uphold democratic principles in the age of neurotechnology. Such recognition does not necessitate abandoning existing rights frameworks, but rather adapting them to meet extraordinary technology capabilities.

Conclusion 

The explosive development of neurotechnology calls into question existing legal and ethical frameworks. Current privacy regulations alone cannot adequately protect brain networks. Data, which are the digital imprints of thought and cognition. To ensure that individuals maintain control over their internal life, neuroprivacy and brain data protection must be recognized as fundamental rights, constructed according to existing human rights traditions but tailored for the cognitive era. Future legal frameworks should incorporate neurorights principles, enforce strong consent mechanisms, limit exploitation economically, and harmonize international standards to avoid a fragmented approach that exposes persons to risk. Protecting neuroprivacy is more than just a technical data governance issue; it is a critical human rights need for the twenty-first century. Neuroprivacy and brain data protection are the future geographical boundaries for fundamental rights in the digital age. As neurotechnology blurs the line between mind and machine, the criminal justice system must adapt by protecting mental privacy, cognitive liberty, and human dignity. Existing safety of information regimes, while essential, are insufficient to handle the particular possible risks associated with brain data. Societies can ensure that technological progress does not come at the expense of human autonomy through the implementation of neuroprivacy into constitutional and international human rights frameworks, as well as implementing neurorights concepts. The dilemma of neuroprivacy ultimately tests whether the law can keep up with progress while remaining true to its primary purpose: the preservation of human dignity and freedom.