Neurotechnology is rapidly moving from clinical laboratories into everyday consumer life. Devices capable of monitoring, interpreting, and potentially influencing neural activity are no longer speculative; they are already marketed for wellness, productivity, and entertainment. As these technologies proliferate, so too does the collection of neural data, which may reveal deeply personal aspects of cognition, emotion, and behaviour. Regulators across jurisdictions have begun reacting to this changing landscape, with several attempting to classify neural data within existing privacy frameworks or create new legal categories altogether. Yet an emerging concern is that classification alone may be insufficient to address the broader risks posed by neurotechnology. This article explores how different legal systems are approaching neural data and why a more comprehensive regulatory framework may be necessary.
Protecting Neural Data
Once limited to the medical sector, neurotechnology is gaining a greater foothold in the consumer space with brain-computer interfaces (“BCIs”) and Electroencephalography (“EEG”) headsets becoming more accessible to individuals for use in monitoring or modifying nervous system activity. Around the world, companies are engaging in widespread exploration aimed at the diverse applications of neurotechnology. Technology giants like Apple and Samsung are reportedly exploring the integration of neurotechnology (e.g., neuro headsets) as accessory options for their devices and developing their own EEG devices to track brain health. While companies like InteraXon Inc. and EMOTIV are building entire product lines in this area. Muse, a wearable EEG headset that assists with guided meditation and deep sleep. Emotiv MW20, marketed as the world’s first EEG-enabled wireless earphones that provide studio-grade sound and live monitoring of your mental state (e.g., stress, focus, etc.). The global market is also growing at a breakneck pace with the United Nations Educational, Scientific and Cultural Organization (“UNESCO”) projecting the market will reach approximately $24.2 billion by 2027.
The rapid rise in neurotechnology has caught the attention of regulators who are concerned with protecting the neural data that is collected and processed in connection with neurotechnology devices.
In Canada, the Office of the Privacy Commissioner (“OPC”) said that neural data is considered a form of biometric information protected under the Personal Information Protection and Electronic Documents Act and, in February 2026, added “neural data” to the list of personal information that is generally considered sensitive and require a higher degree of protection. While in the European Union, the General Data Protection Regulation may already apply to the processing of neural data insofar as it relates to an identifiable individual, with authorities like the European Data Protection Supervisor noting that neural data may qualify as a special category of personal data under EU data protection law, particularly where it can be characterised as biometric or health data.
The United States of America (“USA”) has become a site of significant legal reform with states such as California, Colorado, and Montana implementing legislative changes to expressly reference neural data in applicable privacy laws. These laws represent some of the first attempts in the USA to define neural data as a distinct category of information, though definitions and scope may vary considerably across states. More states are set to follow suit with bills being proposed in Connecticut, Massachusetts, Minnesota, Illinois, and Vermont for the protection of neural data. These developments suggest a growing trend among U.S. state legislatures to treat neural data as a distinct category of sensitive information within emerging privacy frameworks. At the federal level, the Management of Individuals’ Neural Data Act of 2025 (“MIND Act”) was recently introduced in late 2025, which, if enacted, would direct the USA Federal Trade Commission to work on protecting neural data to safeguard privacy and prevent misuse.
Classifying Neural Data is Not Enough
Although regulators are making headway in safeguarding the space, we may still have a long way to go. Privacy and technology experts have long called for a comprehensive approach towards neurotechnology regulation that is broader than just focusing on data classification. They argue that this narrow approach may leave gaps in the legal framework. This may be especially concerning in the context of neurotechnology, where the sensitivity of the information and its potential to provide insight into an individual’s inner thoughts could lead to incomprehensible levels of harm.
In October 2025, the World Economic Forum’s Global Future Council on Neurotechnology (the “Council”) reviewed policy approaches across jurisdictions and the resulting limitations of only focusing on regulating neural data. They commented that by premising legal safeguards on a specific category of information like neural data, we miss cases that do not clearly fall within the defined category. For example, non-neural information, such as heart-rate variability, may be used to infer mental states or be combined with neural information (i.e., information based on an individual’s nervous system) to obtain deeper insight into the mind of an individual. However, these cases may not be captured in laws that only focus on protecting neural data and narrowly define the term as being only associated with neural information (e.g., Section 1798.140 of the California Civil Code defines “neural data” to mean “…information that is generated by measuring the activity of a consumer’s central or peripheral nervous system, and that is not inferred from nonneural information.”). Furthermore, the Council points out that a broader, technology-neutral approach is necessary so that regulations are not caught off guard by future developments in the space that may change the nature of the information being considered.
Towards a More Comprehensive Legal Framework
What does a comprehensive legal framework look like?
In November 2025, we may have moved a step closer to this answer when UNESCO Member States adopted the first global normative framework on the ethics of neurotechnology (the “Recommendation”). Among other things, the Recommendation is intended to provide a universal framework with policy guidance for UN Member States to engage with regulating neurotechnology throughout the technology’s lifecycle.
The Recommendation includes a section on Data Policy with guidance for Member States to take policy action with respect to neural data but attempts to broaden protection beyond narrowly defined neural data categories. For example, this includes suggestions to develop comprehensive and agile frameworks for the collection, use, processing, sharing, and safeguarding of personal data that consider “…neural data as well as indirect neural data and non-neural data allowing mental states inferences”. The Recommendation’s Data Policy guidance also goes beyond a neural data focus towards the view of regulating neurotechnology itself, such as suggesting incentivizing neurotechnology manufacturers to incorporate privacy-preserving technologies as default features.
The Recommendation’s other suggestions for policy action take on a broader neurotechnology focus. In the area of Security, the Recommendation suggests implementing cybersecurity standards for neurotechnology that promotes privacy compliance and safeguards against cyber threats. While for Consumer and Commercial Domains, the Recommendation advises Member States to establish or strengthen consumer protection laws that: (i) provide adequate oversight for the safe and consensual use of neurotechnologies; (ii) enforce consent processes that are transparent and uniformly applied across neurotechnological interventions to safeguard against coercive use; and (iii) add prohibitions on the use of neurotechnology for commercial, marketing or political applications.
Notably, aligned with the Criticism from the Council, the Recommendation emphasizes that governance should remain adaptable and technology-neutral, recognizing that rigid categorizations may fail to capture future developments in how cognitive and neuro-derived data are generated and exploited.
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