Neurotechnology & Data Protection: Why Mental Privacy is the Next Frontier in Digital Rights

A Cerebralink Insight Report Neurorights/Privacy

In the age of artificial intelligence and brain-computer interfaces (BCIs), your thoughts are no longer just yours. Welcome to the era of neurotechnology, where mental privacy is becoming one of the most pressing challenges in data protection law and human rights. At Cerebralink, we are at the forefront of developing legal, technical, and ethical frameworks to ensure the safe and just deployment of neurotechnologies across industries.

What is Neurodata—and Why Does It Matter?

Neurodata refers to information derived from brain activity, often collected via technologies like electroencephalography (EEG), functional MRI (fMRI), and increasingly, non-invasive or implantable BCIs. This data can include everything from emotional responses and cognitive states to intention, attention, or memory recall.

Such data is inherently personal and biometric, offering the ability to not only identify individuals, but to reveal deeply private aspects of their inner lives—thoughts, moods, preferences, and vulnerabilities. This renders neurodata arguably more sensitive than traditional health or genetic data, yet existing legal frameworks remain inconsistent in its treatment.

Are Brain Signals Protected by the GDPR?

The EU General Data Protection Regulation (GDPR), and by extension the UK Data Protection Act 2018, define personal data as any information relating to an identified or identifiable natural person (Art. 4(1)). Neurodata, which is inherently linked to the brain signals of individual users, qualifies as personal data under this definition.

But is it special category data? Not always.

According to Article 9(1), special category data includes:

• Data revealing racial or ethnic origin, political opinions, or religious beliefs

• Biometric data used for unique identification

• Health data, including mental health

While some neurodata (like that used in medical diagnosis) may fall under “health data,” many forms—like emotional tracking or attention monitoring—do not. This presents a legal grey area, where neurotech companies may process deeply sensitive data without triggering the heightened protections required for special category data.

ICO’s Position

The UK’s Information Commissioner’s Office (ICO) has acknowledged this mismatch. While not all neurodata is technically classified as “sensitive,” its misuse could lead to significant harm—loss of autonomy, profiling, psychological manipulation, and discrimination.

Legal Frameworks in the UK: Are They Fit for Purpose?

There are three primary legal avenues in the UK that might apply to the misuse of neurodata:

1. Breach of Confidence (BOC)

To establish BOC, claimants must prove that:

• The information had the necessary quality of confidence,

• It was shared in circumstances giving rise to a duty of confidence, and

• It was misused to the detriment of the confider.

In the context of consumer neurotech, such as EEG headsets or brain-tracking VR games, this is a poor fit. Users rarely “share” their brain data with an expectation of confidentiality—it is passively collected through apps and devices.

2. Misuse of Private Information (MOPI)

MOPI is built upon Article 8 of the European Convention on Human Rights (right to privacy), balanced against Article 10 (freedom of expression). Courts assess whether the claimant had a reasonable expectation of privacy and whether the interference with this right was proportionate.

MOPI is more suited to neurotech issues than BOC. For example, unauthorised brain surveillance, emotion tracking, or covert cognitive profiling may trigger a MOPI claim, even if the data collected is not “confidential” in the traditional sense.

However, repurposing neurodata or selling it to third parties without consent may fall outside its scope—especially where the information is anonymized or aggregated.

3. The GDPR and the Data Protection Act 2018

These laws regulate:

• Lawful grounds for processing personal data

• Requirements for transparency, purpose limitation, and data minimisation

• Conditions for consent and the processing of special category data

The GDPR is arguably the most effective current legal tool for managing neurodata. However, even this is inadequate in some respects:

• Consent mechanisms are often weak or coercive.

• T&Cs for consumer neurotech products may embed consent as a condition of service, undermining voluntariness.

• Research exemptions and public interest clauses can be exploited as loopholes by powerful commercial actors.

Neurorights: A New Legal Frontier

Scholars such as Marcello Ienca and Roberto Andorno, along with initiatives like the Institute of Neurotechnology & Law, have proposed the adoption of neurorights—a set of new human rights to address the risks of neurotechnological intrusion.

These include:

• Mental Privacy: Protection from unauthorized access to neural data or thoughts

• Cognitive Liberty: The right to freedom of thought and self-determination over one’s mind

• Psychological Integrity: Safeguarding against cognitive manipulation or hacking

• Equal Access to Augmentation: Ensuring fair distribution of neuroenhancement technologies

Cerebralink supports the global push toward the recognition of neurorights and works with industry partners, regulators, and legal stakeholders to embed these principles into governance frameworks.

The Danger of Algorithmic Profiling and Emotional Surveillance

Modern neurotechnologies don’t just passively collect data—they infer. By combining brain signals with other datasets (facial expression, heart rate, speech patterns), AI models can make powerful inferences about mood, intent, and preferences. This makes profiling and behavioural prediction a real and present danger.

Examples include:

• Brain-data-driven marketing (e.g., detecting interest or disgust during ad exposure)

• Employer surveillance via cognitive monitoring

• Predictive policing based on emotional or neurophysiological responses

These applications raise not only legal concerns but profound ethical and societal ones—especially when data triangulation allows re-identification even from pseudonymized datasets.

Cerebralink’s Commitment to Privacy-by-Design in Neurotech

At Cerebralink, we believe the neurotech revolution must be anchored in digital dignity. That means moving beyond compliance and embedding privacy-by-design and ethics-by-design into every product lifecycle.

We offer:

• GDPR and UK Data Protection Act compliance audits for neurotech firms

• Risk assessments for BCI platforms

• AI and algorithmic transparency consulting

• Policy guidance on neurorights and mental privacy

• Training workshops for researchers, developers, and executive teams

Conclusion: Reimagining Digital Rights for the Neural Age

The mind is the last frontier of privacy—and it is under threat. Brain-computer interfaces, AI, and neuroanalytics offer enormous promise but carry equally profound risks. Legal systems are still playing catch-up, and the ethical implications remain vast and underexplored.

Cerebralink stands at the intersection of neurotechnology, law, and ethics. We’re helping shape a future where innovation and human rights go hand in hand—and where your mind remains your own.