No. 161: Legal and Technical Pathways for Neurotechnology Governance in the EU and US
Abstract
Advancements in neurotechnology pose a significant challenge to the legal frameworks that protect mental privacy. Until recently, devices capable of recording, interpreting, or modulating neural activity were confined to clinical and laboratory settings. Now, they are being deployed across consumer, educational, and workplace environments. The neural data generated by these systems can reveal information about emotional and cognitive states and complicate the already controversial question of what constitutes personal data. Existing privacy and data protection frameworks may be both conceptually and structurally inadequate when confronted with technology that can address itself directly to cognitive activity. Drawing on a comparison of the United States’ and the European Union’s regulatory approaches, this paper explores how legal standards can incorporate technical privacy-enhancing mechanisms, such as encryption, differential privacy, and local processing. This integration aims to operationalize the protection of neural information within specific sectoral contexts. By integrating these legal and technical considerations, the paper articulates a framework for neural data governance that balances innovation incentives with the safeguarding of mental privacy. The analysis situates this framework within the broader legal context of recognizing cognitive rights, sectoral adaptation, and institutional oversight.