For years, the priority was protecting digital data. Today, the challenge enters deeper territory: mental activity. Neurotechnologies capable of capturing neural signals, inferring emotions, or anticipating decisions are advancing rapidly. And when technology gets closer to what we think and feel, the key question is human: How do we preserve autonomy?
In that context, Chile took a pioneering step globally by approving, in October 2021, the Law No. 21,383, which amended the final paragraph of Article 19 No. 1 of the Constitution Policy, establishing that “scientific and technological development will be at the service of people and will be carried out with respect for life and physical and mental integrity. The law will regulate the requirements, conditions and restrictions for its use in people, and must especially safeguard brain activity, as well as the information derived from it” (Ruiz et al., 2024).
Thus becoming the first country in incorporate neuro-rights into its constitutional textThis sets a precedent that Brazil, Mexico, and Spain have begun to explore (McCay, 2024; Cornejo-Plaza et al., 2024). This is a clear sign that innovation needs limits before technological capacity becomes irreversible.
What are neurorights?
These are principles normative, ethical, legal and social aimed at protecting and preserving the human brain and mind in the face of advancing neurotechnologies. Its development is based on two main proposals:
The Four New Human Rights (Ienca and Andorno, 2017): They argue that the current framework is insufficient and propose:
• Cognitive freedom: Right to decide the use of neurotechnology.
• Mental privacy: Protection of brain data.
• Mental integrity: Protection against harmful mental alterations.
• Psychological continuity: Preservation of personal identity.
The Four Ethical Priorities (Yuste et al. / Morningside Group, 2017): They propose clauses for international treaties on privacy and consent, agency and identity, cognitive augmentation and algorithmic bias.
Together, they seek prevent access or registration brain activity without consent and protect against undue influence on mental processes.
A critical point is the equitable access to neurotechnologiesGiven that this technology represents a significant advance in human capabilities, access to it must be guaranteed by law for all citizens, preventing it from becoming a privilege and ensuring that its benefits reach all of society fairly.
Promising progress and unprecedented risks
The brain-computer interfaces (BCI) have made significant progress as tools for the Cognitive neuroscience and clinical intervention, using technologies such as electroencephalography (EEG) to decode neuronal signals in real time for rehabilitation and device control (Ruiz et al., 2024).
Simultaneously, this development has jumped into the mass consumer market with devices from companies like Emotiv and NeuroSky, for gaming, entertainment and marketing (Ienca & Andorno, 2017). While these advances offer great opportunities in health, accessibility, and productivity, they also imply that neurodata collection It is expanding beyond traditional clinical settings.
The problem is no longer just “reading” information, but the possibility of influencing it. If a system anticipates desires before the person identifies them or adjusts stimuli to guide behavior, the line between assistance and control becomes blurred.
Chile not only recognized this sensitivity in its legislation, but also set a global milestone in August 2023 when the Supreme Court issued the first ruling in the world on neuroprivacy, following the lawsuit against Emotiv Inc. over its “Insight” device.
The ruling determined that Neurodata is sensitive and protected biometric data by Law No. 19.628, establishing that its collection without adequate safeguards violates the constitutional rights to privacy and physical and mental integrity (Cornejo-Plaza et al., 2024). This resolution is crucial, as it requires a special protection for brain activity even in commercial or recreational contexts.
In this legal process, I participated as cyber expert providing the necessary technical analysis to highlight the risks associated with these devices. I elaborate on this experience in depth in my chapter on neurorights and innovation in the book that I share with you here.
How to avoid cognitive manipulation?
One of the most complex risks to identify is the cognitive manipulation or malicious brain-hacking, which describes criminal activities that directly interfere with neural computing (Ienca & Andorno, 2017). These attacks can occur at levels of measurement, decoding, or feedbackallowing manipulation of neuronal activity without leaving visible traces, which makes its regulation difficult.
Neuro-rights aim to prevent three critical threats:
• Interference with thought, even through subtle stimuli.
• Unauthorized access to neural signals, whether consciously interpreted or not.
• AI that exploits cognitive vulnerabilities for commercial or political purposes.
Protecting the mind is a new ethical standardHowever, its implementation faces debate: from academics who believe that current rights are already sufficient (Zúñiga-Fajuri et al., 2021), to those who fear that rigid regulation will stifle scientific innovation (Ruiz et al., 2024). The challenge is to achieve a strategic balance that safeguards autonomy without inhibiting advances that could benefit millions.
The role of governments and businesses
If a technology can access neural signals or influence decisions, it can also become a tool of power.
He role of governments It's not about stifling innovation, but establish clear frameworksAt the international level, this is reflected in the OECD recommendations (2019) and the work of the Neurorights Foundation (Borbón & Borbón, 2021). In our region, Chile leads the wayfollowed by Brazil and Mexico (McCay, 2024). These efforts converge on three pillars: informed consent, data protection as a special category, and safeguarding cognitive autonomy.
On the side of the companiesThe responsibility is to implement solutions with non-negotiable criteria: explicit consent, handling of sensitive information, and controls against silent manipulation.
Neurotechnologies will continue to evolve, and the boundary between mind and technology will become narrower. Mental privacy emerges as a fundamental right for the 21st century (Yuste et al., 2021). As Ienca (2021) points out, cognitive freedom is the basis of all freedom, because safeguards thought before any external expression.
Chile has taken the first step; the international community now has the responsibility to build upon that precedent. If the future is technological, it must also be profoundly human.
References:
• Borbón, D., & Borbón, L. (2021). A critical perspective on NeuroRights: Comments regarding ethics and law. Frontiers in Human Neuroscience, 15, 703921. https://doi.org/10.3389/fnhum.2021.703921
• Cornejo-Plaza, M. I., Cippitani, R., & Pasquino, R. (2024). Chilean Supreme Court ruling on the protection of brain activity: Neurorights, personal data protection, and neurodata. Frontiers in Psychology, 15, 1330439. https://doi.org/10.3389/fpsyg.2024.1330439
• Ienca, M. (2021). On neurorights. Frontiers in Human Neuroscience, 15, 701258. https://doi.org/10.3389/fnhum.2021.701258
• Ienca, M., & Andorno, R. (2017). Towards new human rights in the age of neuroscience and neurotechnology. Life Sciences, Society and Policy, 13(1), 5. https://doi.org/10.1186/s40504-017-0050-1
• McCay, A. (2024). Neurorights: The Chilean constitutional change. AI & Society, 39, 797–798. https://doi.org/10.1007/s00146-022-01396-0
• Ruiz, S., Valera, L., Ramos, P., & Sitaram, R. (2024). Neurorights in the Constitution: From neurotechnology to ethics and politics. Philosophical Transactions of the Royal Society B, 379(1915), 20230098. https://doi.org/10.1098/rstb.2023.0098
• Yuste, R., Goering, S., Agüera y Arcas, B., Bi, G., Carmena, J. M., Carter, A., Fins, J. J., Friesen, P., Gallant, J., Huggins, J. E., Illes, J., Kellmeyer, P., Klein, E., Marblestone, A., Mitchell, C., Parens, E., Pham, M., Rubel, A., Sadato, N., … Wolpaw, J. R. (2017). Four ethical priorities for neurotechnologies and AI. Nature, 551, 159–163. https://doi.org/10.1038/551159a
• Yuste, R., Genser, J., & Herrmann, S. (2021). It's time for neuro-rights: New human rights for the age of neurotechnology. Horizons: Journal of International Relations and Sustainable Development, 18, 154–165.
• Zúñiga-Fajuri, A., Miranda, L. V., Miralles, D. Z., & Venegas, R. S. (2021). Neurorights in Chile: Between neuroscience and legal science. In M. Hevia (Ed.), Developments in neuroethics and bioethics (pp. 165–179). Academic Press. https://doi.org/10.1016/bs.dnb.2021.06.001