The European Parliamentary Research Service (EPRS) in July published a study on neuroprivacy, ‘The protection of mental privacy in the area of neuroscience – Societal, legal and ethical challenges‘, introduced as follows:

Advances in (neuro)technological development have led to an increase in the use and accessibility of neurotechnologies (NT), allowing brain activity to be recorded, analysed and manipulated by neurotechnological devices. While they were originally used only for clinical purposes, they are becoming more and more attractive for healthy populations willing to enhance their cognitive or physical abilities. Consumer-grade devices can be acquired and used by lay persons without supervision in work, education and entertainment environments. This state of affairs raises a multitude of open questions and the possibility of threats to data security and privacy, as well as neuropsychological, ethical and societal implications. As a result, the Neurorights Foundation (NRF) was formed in 2017 to investigate and discuss these questions and make them visible to the public. This study addresses the NRF’s claims and suggestions and evaluates the need for their proposed ‘neurorights’. Disciplinary evaluations of the issues at stake are followed by recommendations and policy options.

The documents:

• Study (pdf)
• Briefing (pdf)

Neurodata publication by EDPS

In June the European Data Protection Supervisor (EDPS) presented an issue of EDPS TechDispatch on the subject of neurodata: html version, pdf version.

The conclusion is as follows (footnote removed):

Neurodata processing, a form of personal data processing, promises to enable new ways of interacting with the physical and digital world, enhancing human capabilities and experiences.

Neurotechnologies, once confined to healthcare or security, are now being directly sold to consumers, marking a significant shift in accessibility, but also in harmfulness. This accessibility, coupled with the power of Artificial Intelligence to combine data from various sources, is paving the way for discovering patterns or trends in the data these neurotechnologies collect and manage.

This TechDispatch has introduced how different types of neurodata processing enable different use cases, in the present and in the future. At the same time, we provided some high-level indications on how certain uses of neurodata can substantially interfere with fundamental rights and freedoms and jeopardise the fundamental right to respect for human dignity.

Neurotechnologies deal with human brain activity, where our most intimate thoughts and feelings reside. They raise crucial issues from a philosophical, ethical and legal perspective: “Understanding, treating, and augmenting the human brain and mind is one of the great scientific challenges of our age. Achieving these goals in a way that preserves justice, safeguards fundamental rights and human dignity is the corresponding task of ethics and law”.

Before further progress is made, it seems essential to undertake an in-depth analysis of neurodata and assess its impact on fundamental rights, including whether the creation of new human rights, namely neurorights, is required.

“The Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo Convention) offers an ideal platform and normative substrate for the protection and promotion of neurorights. Given its focus on prohibiting the misuse of innovations in biomedicine, protecting the dignity and identity of all human beings, and guaranteeing respect for their integrity and fundamental freedoms, the Convention is well placed for either enshrining neurorights through ad hoc protocols or for serving as a basis for future instruments.”

In any case, as noted, in the European Union, the Charter of Fundamental Rights already expressly acknowledges the fundamental right to mental integrity (Article 3), as one of the expressions of the fundamental right to human dignity (Article 1), which is also the foundation of the right to privacy and to the protection of personal data (respectively, Article 7 and 8 of the Charter).

Frontpage of the EDPS publication (pdf version)