Chilean Supreme Court ruling on the protection of brain activity: neurorights, personal data protection, and neurodata

This paper examines the Chilean Supreme Court's August 9, 2023, ruling (rol N° 1.080-2020) in the case of Guido Girardi Lavin v. Emotiv Inc. The case centers on Emotiv Inc.'s "Insight" device, a neuro-headset that collects neurodata—information about the brain's electrical activity. Mr. Girardi argued that the device inadequately protects user brain information privacy, violating constitutional guarantees. The ruling's significance lies in its potential to establish legal precedents regarding the definition, protection, and regulation of neurodata globally. The court had to determine whether existing data protection laws—specifically, Chile's Law N° 19.628 and the EU's GDPR—adequately address the unique challenges posed by neurodata. This introduction sets the stage for a detailed analysis of the court's reasoning, exploring the legal arguments presented by both sides and examining the implications of the ruling for future neurotechnology regulation.

The paper reviews existing literature on data protection laws, focusing on their applicability to neurodata. It examines whether neurodata should be classified as personal data under current legal frameworks like Chile's Law No. 19.628 and the EU's GDPR. The authors discuss different interpretations of "personal data," including the broad interpretation adopted by the Court of Justice of the European Union. Additionally, the review considers whether neurodata should be categorized as "sensitive data" or a new category altogether, given their unique ability to reveal intimate aspects of human personality. The concept of "neurodata exceptionalism" is introduced, emphasizing the need for regulations that account for the specific characteristics of neurodata and their potential risks.

The authors employed a qualitative legal research methodology, focusing on a detailed analysis of the Chilean Supreme Court's ruling. Their approach involved a careful examination of the court's reasoning, the arguments presented by both parties (Mr. Girardi and Emotiv Inc.), and relevant legal frameworks, including Chile's Law N° 19.628 on the protection of personal data and the EU's General Data Protection Regulation (GDPR). The analysis incorporated relevant scientific literature on neurotechnology, its capabilities, and associated ethical concerns. The authors also considered international instruments and documents relevant to data protection, neuroethics, and human rights. The paper critically examines the application of existing legal frameworks to the novel context of neurodata, highlighting gaps and ambiguities in current legislation. The authors draw upon legal doctrine, case law, and scholarly articles to support their arguments and to offer insights into the implications of the ruling for future legal developments.

The Chilean Supreme Court's ruling, while not explicitly defining neurodata as a new category of data, implicitly acknowledges its unique nature and the need for stronger protection. The court highlighted the potential risks associated with neurodata collection, including re-identification, hacking, unauthorized reuse, and commercial exploitation. It emphasized the importance of informed consent, specifically rejecting Emotiv Inc.'s argument that consent given to use the device implicitly covered the use of neurodata for research. The ruling indicates that the existing data protection law, Law No. 19.628, is insufficient to adequately address the risks posed by neurodata. The court implicitly supports the concept of "neurorights" by acknowledging the need to protect mental privacy and cognitive freedom, even if not explicitly using this terminology. The court's consideration of consumer protection underscores the influence of marketing practices on informed consent, suggesting the need for regulation to counteract manipulative commercial practices. The judgment also calls for a proactive approach by the state to anticipate the potential impacts of neurotechnologies on human dignity and integrity.

The ruling addresses the limitations of existing data protection legislation in dealing with neurodata. The court's implicit recognition of "neurorights" suggests a shift towards a more holistic approach to protecting the human person in the age of neurotechnology, moving beyond traditional personal data protection models. The discussion highlights the implications of the ruling for future legal and ethical frameworks concerning neurodata, emphasizing the need to proactively address the specific challenges posed by the emerging field of neurotechnology. The authors' analysis emphasizes the inadequacy of existing legislation and supports the development of specific regulations tailored to neurodata, considering both its functional and structural properties. The concept of "neurodata exceptionalism" is further developed, arguing that the uniqueness of neurodata warrants a departure from the traditional one-size-fits-all approach of existing data protection laws.

The Chilean Supreme Court's ruling marks a significant step in the global conversation surrounding neurodata and its protection. The ruling, while not explicitly creating a new legal framework, pushes for a more robust approach than traditional data protection laws allow. It recognizes the unique challenges posed by neurodata and implicitly supports the emerging concept of neurorights. This underscores the necessity for continuous research, discussion, and legal development to effectively navigate the ethical and legal challenges presented by advancements in neurotechnology. Future research should focus on developing comprehensive legal frameworks specifically designed to protect individual rights in the context of neurodata and the broader implications of neurotechnologies.

The study focuses solely on the Chilean Supreme Court ruling and the specific legal framework within Chile. Therefore, the findings may not be fully generalizable to other jurisdictions with different legal systems and data protection laws. The paper relies on a qualitative analysis of the court's reasoning, which may be subject to interpretation. Furthermore, the rapidly evolving nature of neurotechnology may render certain aspects of the analysis outdated quickly. The discussion on consumer protection is limited and future research would benefit from a more extensive study of consumer behavior in the context of neurotechnology.