More states are passing laws to protect information generated by a person鈥檚 brain and nervous system as technology improves the ability to unlock the sensitive details of a person鈥檚 health, mental states, emotions, and cognitive functioning.
, , and are among the states that have recently required safeguarding brain data collected by devices outside of medical settings. That includes headphones, earbuds, and other wearable consumer products that aim to improve sleep, focus, and aging by measuring electrical activity and sending the data to an app on users鈥� phones.
by the Neurorights Foundation, an advocacy group that aims to protect people from the misuse of neurotechnology, found that 29 of 30 companies with neurotechnology products that can be purchased online have access to brain data and 鈥減rovide no meaningful limitations to this access.鈥� Almost all of them can share data with third parties.
Get top headlines and 萝莉少女 reporting directly to your mailbox each week when you subscribe to In The NoCo.
In June, the American Medical Association of neural data. In April, several Democratic members of the U.S. Senate Committee on Commerce, Science, and Transportation to investigate whether companies are exploiting consumers鈥� brain data. Juliana Gruenwald Henderson, a deputy director of the FTC鈥檚 Office of Public Affairs, said the agency had received the letter but had no additional comment.
Although current devices gather relatively basic information like sleep states, advocates for brain data protection caution that future technologies, including artificial intelligence, could extract more personal and sensitive information about people鈥檚 medical conditions or innermost thoughts.
鈥淚f you collect the data today, what can you read from it five years from now because the technology is advancing so quickly?鈥� said Democratic state Sen. Cathy Kipp, who sponsored Colorado鈥檚 2024 neural data protection bill when she was in the state House of Representatives.
As both excitement and trepidation about AI build, at least 28 states and the U.S. Virgin Islands some type of AI regulation separate from the privacy bills protecting neural data. President Donald Trump鈥檚 鈥溾�� included a 10-year halt on states passing laws to regulate AI, but the Senate stripped that provision out of the budget reconciliation bill before voting to approve it on July 1.
The spirit of laws in Colorado, California, and Montana is to protect the neural data itself, not to regulate any algorithm or AI that might use it, said Sean Pauzauskie, medical director for the .
But neurotechnology and AI go hand in hand, Pauzauskie said. 鈥淎 lot of what these devices promise is based on pattern recognition. AI is really driving the usability and significance of the patterns in the brain data.鈥�
a professor of neurosurgery at the University of Colorado School of Medicine, said that AI鈥檚 ability to identify patterns is a game changer in her field. 鈥淏ut contribution of a person鈥檚 neural data on an AI training set should be voluntary. It should be an opt-in, not a given.鈥�
Chile in 2021 became the first country to adopt a constitutional amendment for neurorights, which prioritize human rights in the development of neurotechnology and collection of neural data, and UNESCO has said that neurotechnology and artificial intelligence could together pose a threat to human identity and autonomy.
Neurotechnology can sound like science fiction. Researchers used a and an AI model to decode the brain鈥檚 electric signals from thoughts into speech. And two years ago, a study described how neuroscientists reconstructed the Pink Floyd song 鈥溾�� by analyzing the brain signals of 29 epilepsy patients who listened to the song with electrodes implanted in their brains.
The aim is to use neurotechnology to help those with paralysis or speech disabilities, as well as treat or diagnose traumatic brain injuries and brain disorders such as Alzheimer鈥檚 or Parkinson鈥檚. Elon Musk鈥檚 Neuralink and , funded by Bill Gates and Jeff Bezos, are among the companies with clinical trials underway for devices implanted in the brain.
Pauzauskie, a hospital neurologist, started worrying four years ago about the blurring of the line between clinical and consumer use of neural data. He noted that the devices used by his epilepsy patients were also available for purchase online, but without protections afforded by the Health Insurance Portability and Accountability Act in medical settings.
Pauzauskie approached Kipp two years ago at a constituent meetup in his hometown of Fort Collins to propose a law to protect brain data in Colorado. 鈥淭he first words out of her mouth that I鈥檒l never forget were, 鈥榃ho would be against people owning their own brain data?鈥欌�� he said.
Brain data protection is one of the rare issues that unite lawmakers across the political aisle. The bills in California, Montana, and Colorado passed unanimously or nearly unanimously. Montana鈥檚 law will go into effect in October.
Neural data protection laws in Colorado and California amend each state鈥檚 general consumer privacy act, while Montana鈥檚 law adds to its existing genetic information privacy act. Colorado and Montana require initial express consent to collect or use neural data and separate consent or the ability to opt out before disclosing that data to a third party. A business must provide a way for consumers to delete their data when operating in all three states.
鈥淚 want a very hard line in the sand that says, you own this completely,鈥� said Montana state Republican Sen. Daniel Zolnikov, who sponsored his state鈥檚 neural data bill and other privacy laws. 鈥淵ou have to give consent. You have the right to have it deleted. You have complete rights over this information.鈥�
For Zolnikov, Montana鈥檚 bill is a blueprint for a national neural data protection law, and Pauzauskie said support of regulatory efforts by groups like the AMA pave the way for further federal and state efforts.
Welle agreed that federal regulations are needed in addition to these new state laws. 鈥淚 absolutely hope that we can come up with something on a national level that can enshrine people鈥檚 neural rights into law, because I think this is going to be more important than we can even imagine at this time.鈥�
is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF鈥攁n independent source of health policy research, polling, and journalism. Learn more about .