The Record: Neural data privacy an emerging issue as California signs protections into law

Companies’ solicitation, storage and sale of neural data is an emerging trend, but the practice is growing quickly and privacy and discrimination concerns abound, said Calli Schroeder, global privacy counsel at the Electronic Privacy Information Center. She is working with the United Kingdom’s data privacy regulator, the Information Commissioner’s Office, to help it develop guidance to companies on the issue. 

Through that work, Schroeder has spoken with some neuroscientists who believe neural data can be as individually identifiable as a fingerprint, she said. 

The lack of federal neural data privacy laws for non-medical use of the data — medical applications are regulated by the Food and Drug Administration and are covered under the Health Insurance Portability and Accountability Act, or HIPAA — means there is nothing stopping companies from creating databases populated with brain scans from millions of consumers.  

This information could be used to discriminate against individuals who are neurodivergent or mentally ill, Schroeder said. 

She foresees a future in which brain scans also could be used to determine who to target advertising to or dictate employment and money lending decisions.  

“There are uses of this that we worry about and the way that this is shared that we worry about,” Schroeder said. “There is high risk.” 

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