Neural Data on Trial: Chile’s Supreme Court addresses the First Global Neurorights Case

On August 9, the Chilean Supreme Court released a landmark ruling in what constitutes the world’s first case dealing with the protection of neural data.

The Supreme Court reversed the Court of Appeals’ decision, emphasizing the need for new technologies, especially those dealing with was previously considered a private matter treated in strictly medical environments, like brain activity, to be scrutinized by the appropriate authorities before neuro-capable devices are marketed and used in the country outside that context.

The entire text of the ruling can be found here

Factual background of the case:

Guido Girardi Lavín filed a constitutional protection action against Emotiv Inc, a bioinformatics company that develops and manufactures portable electroencephalography products, along with neuro-earphones, software development kits, software, mobile applications and data products, based in San Francisco, United States.

The case revolves around a device called “Insight,” manufactured by Emotiv and acquired for its use in Chile by Lavin. The wireless device works as a headband with sensors that gather information about the electrical activity of the brain, obtaining data on gestures, movements, preferences, reaction times and cognitive activity of the user.

Lavin accepted the terms of service of the propietory software that powers the device, but as he did not have a paid “PRO account”, the information was stored in Emotiv’s cloud, not allowing him to export or import any record of his brain data.

Emotiv Inc. seeks to dismiss the lawsuit, emphasizing that its product is a non-invasive neurotechnology device and not a medical tool. They stress that users are provided detailed terms and conditions and give explicit consent for data processing, which the claimant did in order to start using the device.

The company argues that the plaintiff only lists hypothetical risks without specifying any concrete violations of constitutional guarantees, and that he overlooked mentioning users’ rights as per their privacy policy.

They deny violating Chile’s Law N° 19.628, being compliant with both Chilean and European GDPR regulations, by employing pseudonymization to safeguard users’ data. They state that personal data is stored only when necessary, and users can always revoke consent for processing brain data. The company emphasizes that their research data is fully anonymized and treated as statistical data, as per Chilean law.

The claims:

The plaintiff wants the company to change its privacy policies, halt sales of the Insight device in Chile until such changes are enacted, delete the claimant’s brain data, and take other measures as needed. As identified in the lawsuit, the alleged risks are:

1. Possible re-identification throug reversing the anonimization data process
2. Piracy or hacking of brain data
3. Unauthorized reuse of brain data
4. Commercialization of brain data
5. Digital surveillance
6. Collection of brain data for purposes not consented to by the individual.

Regulatory Issues:

The issue in question is that the sale of the “Insight” device in Chile doesn’t provide adequate protection for the users’ brain information.

The main argument being that even if the user deletes his account, the company retains brain data for scientific and historical research purposes. This purportedly breaches various constitutional and legal guarantees the privacy of the brain information of its users, infringing constitutional guarantees contained in numbers 1, 4, 6 and 24 of article 19 of the Political Constitution of the Republic of Chile.

This legal instrument is the first constitution in the world to explicitly protect “neurorights” , a term coined by neurocientist Rafael Yuste to cover an umbrella of mental privacy rights that could be affected through neurotechnology.

Also relevant to the case are Article 11 of Law nº19.628, which mandates due diligence in the care of personal data by those responsible for records or databases of personal data, and Article 13 of the same law, which states the right to the cancellation or blocking the use of their personal data.

Chile and neurorights

As a bit of context information, Guirardi Lavin is a Chilean senator, who worked alongside The Neurorights Foundation to establish a neurorights agenda for the country. The suit was also supported by the work of Fundacion Kamanau.

Chile is a pioneer country when it comes to this issue. In Oct 25th, 2021 a constitutional amendment was enacted, protecting brain activity and information:

“Scientific and technological development shall be at the service of people and shall be carried out with respect for life and physical and psychological integrity. The law shall regulate the requirements, conditions and restrictions for its use on persons, and shall especially protect brain activity, as well as the information derived from it;”

This reform established the rights to personal identity, free will and mental privacy, making Chile the first country in the world to legislate considering the impact of neurotechnology to manipulate the mind.

The ruling:

The Court rules in favor of the plaintiff, taking into account both the national constitution and human righs framework, as well as more concrete procedimental considerations.

First they emphazised the scope of Article 19 of the Political Constitution of the Republic, which, constitutes a direct mandate for protection, also connected with various international instruments that recognize the relationship between science and Human Rights.

The Court refers specifically to International agreements like the International Covenant on Economic, Social and Cultural Rights (Article 15) and UNESCO declarations on Science and the Use of Scientific Knowledge, and Bioethics, emphasizing the right to benefit from scientific progress and its applications while ensuring they align with human rights.

Particularly, they emphasized the need for informed consent for the use of information for research, as mandated by Law nº 20.120.

Its Article 11 requieres that every scientific investigation on a human subject requires their informed consent, ensuring they understand the purpose, risks, benefits, and alternatives of the research. If the research conditions change, renewed consent is necessary. The law emphasizes the distinction between using data for scientific research and statistical recording. It requires that individuals be aware and approve if their data, even when anonymized, is used for any purpose other than what they initially consented to, preventing implicit consents.

Considering that, the Court notably stated that:

“Thus, the explanation required, indicating that the data obtained from Insight users, when anonymized, becomes freely usable statistical information, overlooks the preliminary requirement to have express consent for its use for scientific research purposes, distinct from statistical recording, and expressly legally regulated in Chile.

This ensures that information collected for various purposes cannot be used differently without its owner’s knowledge and approval. Moreover, it precludes the possibility that such consent can be deemed implicitly given through other consents or approvals provided by someone who, as a customer or consumer, purchases a specific device. Specific consent indicating the purpose and end of the corresponding investigation is required”

Finally, they also pondered administrative concerns, as the device was sold without the necessary approvals from Customs and had not been assessed by the national health authority.

The court grants the protection appeal, directing the Public Health Institute and customs authority to ensure the Insight device’s marketing and data usage comply with existing regulations. Additionally, the defendant must delete any stored data related to the device’s use by the appellant.

The road ahead: AI, the metaverse and neurotechnology, a capitalism of cognitive surveillance

A year ago, I wrote this piece on how the intersection of metaverse technologies with AI and privacy concerning deployments of brain-computer interfaces can lead us to a “capitalism of cognitive surveillance”. Its pertinent here to reiterate some of that thoughs.

A headset is the perfect medium to fusion VR and neurotechnology. The device already needs to be placed on the head, providing a premium location to access the brain as a non-invasive, external device. Non-invasive relates to a nomenclature inherited from medical science, referred to procedures breaking the skin or entering the body.

In the context of ethics and privacy, I think this classification might present some semantic problems, as can it be misunderstood that an external device might not be invasive, whereas an internal device will be by default.

As it can be misleading, I think we need to reframe the terminology in ethical terms: because even if a device is not entering the body, it can be “invasive” concerning sensitive data derived from anatomical impulses we can’t control, and the inferences that can be construed upon them. Therefore, I propose to consider devices in terms of external or internal, conserving the established medical meaning as referred to the body, but devoid of said connotations.

In the future, neuroscience advancements can allow the recording, processing, and decode of neural signals, presenting a whole new world of ethical concerns. Besides therapeutic uses, neurotechnology can enhance human capabilities in a way close to science fiction core tropes, dystopian propositions included. It works by recording electrical activity in the brain, which allows the creation of an information flow, from and to the brain, mediated by an umbrella of different technologies aptly known as Brain Computer Interfaces (BCI). Recording can happen within the brain itself or on its surface.

Sensors in hand controlled devices will be able to “read” the electrical activity produced by muscles can be transformed into thought to text devices, mediated by machine learning algorithms.

Seems futuristic or far-fetched? Neural prostheses already exist, Meta is working on a wrist based device “The signals through the wrist are so clear that EMG can understand finger motion of just a millimeter. That means input can be effortless. Ultimately, it may even be possible to sense just the intention to move a finger”. Neuroscientist Tom Oxley has already presented an “implantable brain-computer interface that collects and wirelessly transmits information directly from the brain, without the need for open surgery. describes the intricacies of this breakthrough technology, which is currently enrolling participants in human trials”.

Today, VR headsets and controler’s sensors have a very strategic placement in our bodies, being able to monitor a lot of data that we might consent to but not control, like our pulse, heartbeats, the movement and attention of our eyes (saccades), etc. Paired with artificial intelligence, that data can is a treasure trove of information thata allow to create accurate inferences to profile you to advertisers. Then using generative AI, they can create things that will appeal to you in a very persuasive, intimate way. Imagine a virtual world where the system can know what you are looking, how that makes you feel, what you find attractive, and then use that information to create an avatar looking like someone you like, to sell you that virtual t-shirt that just got your attention.

So, if we picture the future of the metaverse considering: current data collection based business models + brain computer interfaces + deployment of generative AI = capitalism of cognitive surveillance

As marvelous as it seems for people with disabilities, we can not avoid the ethical concerns that this technology poses for the future of our privacy, consciousness, agency and self-determination.