Proposed California Law to Protect Neurorights?

The California Senate is in the early stages of deliberating Senate Bill 1223, introduced by Josh Becker (D-District 13). The bill aims to classify “neural data” as “sensitive information” under the California Consumer Privacy Act (CCPA). It is one of the first legislative attempts to codify “neurorights” in the United States and among the first in the world.

Under the proposed bill, “information that is generated by the measurement of the activity of an individual’s central or peripheral nervous systems that can be processed by, or with the assistance of, neurotechnology” qualifies as “neural data.” In practical terms, this means data related to brain activity gathered by wearable devices or implants. Should the bill pass, California residents could request from businesses what data has been collected about them and request that the data be erased. 

As technologies such as Elon Musk’s Neuralink and Meta’s CTRL-labs products venture into the realm of brain-to-computer interactions, the discussion surrounding neural rights is likely to evolve into a larger and more complex debate. Despite the technology’s novelty, there is already some legal precedent on the matter. In Chile, the Supreme Court ruled in favor of a man who sued a company alleging a privacy violation over his “cerebral data.” Chile’s Constitution now has an express provision that guarantees privacy rights over brain activity, and the court referenced the European General Data Protection Regulation (GDPR), which inspired the CCPA. The Chilean case seems to have generated interest in Latin America on the subject. For example, two bills in Mexico have been proposed to address neural rights and adjacent concepts to the nation’s constitution, and Uruguay is reportedly considering neurotechnology regulation. 

It will be interesting to see where the law broadly goes from here, especially from a property rights perspective, as it raises fundamental questions about the extent to which individuals can claim ownership over their neural activity. Do individuals “own” their brain activity, or is the collection of brain activity equivalent to, say, measuring watts produced by the muscles of an athlete or recording a medical patient’s heart rate? Do we even need any new concept of rights, or are current legal frameworks sufficient

The bill has been re-referred to the Committee on Appropriations after receiving unanimous approval by the Senate Judiciary Committee. Should SB-1223 make it to the floor, it appears likely to pass. 

Jonathan Hofer is a Research Associate at the Independent Institute. He has written extensively on both California and national public policy issues. He holds a BA in political science from the University of California, Berkeley. His research interests include privacy law, student privacy, local surveillance, and the impact of emerging technologies on civil liberties.
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