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Neurorights & Cognitive Liberty Legislation

Neurorights is the most active emerging legal field of the 2020s. Chile's 2021 constitutional amendment wrote "neurorights" into its constitution; Colorado 2024 in the US brought neural data under its biometric data law; Minnesota 2024 passed a "Cognitive Liberty Act." Behind this legislation is forward-looking concern about the mind-reading capabilities of BCI + LLMs.

1. The Concept of Neurorights

Pioneered by Ienca & Andorno 2017

Marcello Ienca and Roberto Andorno proposed four neurorights in 2017:

  1. Right to Cognitive Liberty: the freedom to determine one's own mental state
  2. Right to Mental Privacy: protecting information produced by the brain
  3. Right to Mental Integrity: freedom from unauthorized alteration of the brain
  4. Right to Psychological Continuity: preserving personal identity

2020s Additions

  • Right to fair access: preventing neurotechnology from exacerbating inequality
  • Right to algorithmic non-bias: not being discriminated against based on neural data

2. Chile's 2021 Constitutional Amendment

Law 21.383 (ratified 2021-10-25)

  • The world's first constitutional-level neurorights legislation
  • Amended Article 19
  • Protects "information produced by brain activity"

Main Content

  • Prohibits unauthorized acquisition of neural signals
  • Prohibits unauthorized alteration of the brain
  • Treats neural data as sensitive personal data

Background

  • Championed by Senator Guido Girardi
  • Supported by Lagos, Bachelet, Piñera and others
  • Chile's "neuroprotection" became an international model

In 2022, Chile prohibited the unauthorized import of Neuralink — the first real-world application of neurorights law.

3. UNESCO 2024

Preliminary Study 2021

UNESCO began discussions of neurotech ethics.

2024 Recommendation

  • UN recommends member states legislate to protect neurorights
  • First step toward global normalization
  • Non-binding, but highly influential

4. US State-Level Legislation

Colorado 2024 (SB 24-068)

Signed 2024-04: - Extends the definition of "sensitive data" to neural data - Neural data = biometric data - Strict consent + use limitations - Similar to GDPR biometric data provisions

Minnesota 2024 (HF 2309)

"Cognitive Liberty Act": - Cognitive liberty recognized as a right - Prohibits non-consensual collection/use of neural data - Bans coercive use of neural data in employment and education

California

  • Considering similar legislation
  • Expected 2025+

5. EU: AI Act & GDPR

GDPR 2018

  • Neural data = "biometric data" (Article 9)
  • Highly protected
  • Cross-border restrictions

AI Act 2025

  • "High-risk AI": BCI systems
  • Additional provisions for medical devices
  • Prohibits AI that manipulates users

Council of Europe

  • Pushing a Neurorights Framework Convention in 2024
  • May become a multilateral treaty similar to the Budapest Convention

6. China

Personal Information Protection Law 2021

  • Biometric identification qualifies as sensitive personal information
  • Neural data implicitly included
  • Strict consent required

Data Security Law 2021

  • National data security
  • Cross-border transfer of neural data requires approval

BCI-Specific Regulation

  • NMPA 2024 guidance
  • Applicable timing drawing near
  • Aligned with international standards but independent

7. Key Issues

1. Definition

  • What counts as "neural data"?
  • EEG? fMRI? Imagined thought?
  • Boundaries are blurry
  • Is consent valid while implanted?
  • Mandatory medical use vs augmentation choice
  • Minors

3. Data Sovereignty

  • User vs company ownership
  • What happens if the company goes bankrupt?
  • National security exceptions

4. International Divergence

  • Strict Chile vs fragmented US
  • Enforcement difficulty
  • Cross-border services (Neuralink, etc.)

8. The Impact of Tang 2023

The Shock of Semantic Reconstruction

Tang et al. (2023, Nat Neurosci) reconstructed "the meaning of what was thought" from fMRI.

Legislative Reactions

  • Directly drove Minnesota 2024
  • Accelerated discussion in multiple countries
  • Cited by Ienca and other scholars as a legislative basis

But Limitations

  • Tang's study requires cooperation
  • Poor effect without cooperation
  • "Current technology cannot forcibly read the mind" — current is the key word

Near-term (2025-2027)

  • More US state laws
  • EU Neurorights Convention
  • Formal UNESCO documents

Mid-term (2028-2030)

  • International treaties begin
  • Clear classification of medical vs consumer
  • BCI company compliance standards

Long-term (2030+)

  • Neurorights = basic human right
  • Universal status similar to "right to privacy"
  • Continued interplay of technology and law

10. AI Alignment Perspective

LLM + BCI = Mind-Reading Amplifier

Guarding Against AI Manipulation

  • BCI write (stimulation) may be manipulated
  • Who is allowed to "write" to a user's brain?
  • Requires authorization chain + audit

Algorithmic Transparency

  • BCI decision algorithms must be explainable
  • Users see the decoding logic
  • Opposing black boxes

11. Representative Cases

  • Neurorights law blocked Musk's expansion
  • Proof that legislation works

2. Facebook Neural Research (2019-2021)

  • Mark Zuckerberg acquired CTRL-Labs
  • EMG enters commercial use
  • Controversy over data usage

3. BrainCo in Chinese Schools (2019)

  • Monitoring student attention
  • Parent protests
  • Banned in some cities

12. Scholars & Organizations

People

  • Marcello Ienca (ETH Zurich): pioneer of neurorights theory
  • Rafael Yuste (Columbia): founder of the NeuroRights Foundation
  • Nita Farahany (Duke): cognitive liberty legal scholar

Organizations

  • NeuroRights Foundation (Chile + Columbia)
  • International Neuroethics Society
  • OECD Neurotechnology Initiative

13. Logical Chain

  1. Neurorights = cognitive liberty + mental privacy + mental integrity + psychological continuity.
  2. Chile 2021 is the world's first constitutional-level neurorights legislation.
  3. Colorado, Minnesota 2024 bring neural data under biometric data protection.
  4. UNESCO, EU AI Act drive international normalization.
  5. Tang 2023 semantic reconstruction is a direct legislative driver.
  6. LLM + BCI is the core risk that current legislation anticipates.
  7. Cross-border divergence + AI alignment + write regulation are future challenges.

References

  • Ienca & Andorno (2017). Towards new human rights in the age of neuroscience and neurotechnology. Life Sciences Society and Policy. https://lsspjournal.biomedcentral.com/articles/10.1186/s40504-017-0050-1
  • Chile Constitution Amendment Law 21.383 (2021).
  • Colorado SB 24-068 (2024). Privacy of Neural Data.
  • Minnesota HF 2309 (2024). Cognitive Liberty Act.
  • Yuste et al. (2017). Four ethical priorities for neurotechnologies and AI. Nature. https://www.nature.com/articles/551159a
  • UNESCO (2024). Recommendation on the ethics of neurotechnology (preliminary).

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