Data Privacy: Pending State Legislation Addresses “Mental Privacy” Rights

Devices that, through the use of AI, can literally read your mind have to be near the top of anyone’s list of new tech tools with terrifying implications.  A recent Cooley memo says that the privacy risks associated with these brain-reading devices have not been lost on state legislatures, where at least 15 states have pending bills addressing “mental privacy” rights.  This excerpt describes what mental privacy is and lays out some of the key themes of these legislative initiatives:

What is mental privacy?

Mental privacy refers broadly to the protection of data generated by or inferred from a person’s brain activity. This includes not only neurological data, but also inferences about emotions, attention, preferences and decision-making. The emerging laws treat this category of data as uniquely sensitive, warranting distinct legal safeguards.

Key themes in state legislation

Across these pending bills, the following regulatory themes have emerged:

– Transparency: Clear privacy notices about neural data co lection and use

– Consent: Explicit, purpose-limited consent for neural data processing

– Individual rights: Rights to access, correct and delete neural data

– Commercial use restrictions: Limits on the sale and marketing use of neural data

– Workplace protections: Bans or strict limits on using neural data for surveilance or decision-making in employment contexts, even with employee consent

– Special protections for minors and prohibitions on mind manipulation or interference with decision-making

The memo says that some legislative proposals go further and create new rights, such as protections against mind alteration or manipulative interventions based on neural signals.  The memo also includes links to each of the bills pending in the various states.