Neural data as the newest frontier in data privacy

Recent advancements have thrust neurotechnology into the realm of data privacy. Once the domain of science fiction, today's neural implants are becoming capable of turning brain waves into physical outputs and reading human thoughts. To manage these developments, legislation is being designed and adopted around the world. These legislative interventions often raise more questions for practitioners than they answer.

Neuroprivacy regulations at the US federal level

Since the U.S. lacks a comprehensive federal privacy law, disparate agencies and regulations protect consumer privacy. Neuroprivacy is no different. As with more traditional areas of data privacy, the Federal Trade Commission Act empowers the U.S. FTC to pursue unfair or deceptive trade practices, which can include collection, use and sharing of neural data. Some FTC rules, such as the Health Breach Notification Rule, are also likely to apply to the collection of neural data. However, the FTC's regulatory power is constrained by its inability to directly regulate medical devices — an authority that lies with the Food and Drug Administration — and the case-by-case manner in which unfair or deceptive trade practices tests are applied.