Privacy and the Rise of “Neurorights” in Latin America

Authors: Beth Do, Maria Badillo, Randy Cantz, Jameson Spivack

“Neurorights,” a set of proposed rights that specifically protect mental freedom and privacy, have captured the interest of many governments, scholars, and advocates. Nowhere is that more apparent than in Latin America, where several countries are actively seeking to enshrine these rights in law, and some even in their Constitutions.

The rapid global proliferation of neurotechnology—devices that can access mental states by decoding and modulating neural activity—has generated a large amount of consumer neurodata (also known as neural, brain, or cerebral data; brain information; mental activity; etc.). As most existing privacy laws do not separately or explicitly regulate neurodata—even though such data is normally covered by the broad definitions of “personal data” in such legislation—several governments and international bodies have begun to develop specific legal protections for this type of personal data.

This analysis focuses on current legislative efforts in Chile, Mexico, and Brazil, which are indicative of how far the conversation in Latin America has progressed. Other jurisdictions, such as the United States, Israel, South Korea, and Europe, are also in the nascent stages of discussing protections for mental privacy. As neurotechnologies continue to evolve, industry and regulatory bodies alike should look to Latin America for developing trends and best practices.

1. What is neurotechnology?

Neurotechnology is an umbrella term for technologies that allow access to neurodata. Raw neurodata is collected from an individual’s central nervous system (the brain and spinal cord) and/or peripheral nervous system (the nerves outside the brain and spinal cord), including electrical activity between these systems. Neurotechnology includes both traditional techniques such as electroencephalography (EEG) testing and magnetic resonance imaging (MRI) scans, as well as new methods that can monitor or modulate brain activity.

Neurodata is valuable and uniquely sensitive as it can access a person’s emotions, biases, and memories. For example, EEGs can measure inattention, as brainwaves can indicate whether someone’s mind is focused or wandering. With sufficient data over a period of time, brainwave patterns may also even be more uniquely identifying than fingerprints.

2. What are neurorights?

“Neurorights” have been formulated to encompass mental privacy, integrity, and liberty. They are not yet widely recognized at the national level or codified in an international human rights framework, and there is disagreement about their usefulness as a conceptual framework. Some prefer using other terms such as “mental privacy” or “cognitive liberty;” others question the necessity of introducing new rights, or if current legal frameworks are sufficient or could be strengthened to account for them. Neurorights can be simplified into five fundamental rights:

• Mental Privacy: Personal neurodata should be private, and should not be stored or sold without consent.
• Personal Identity: Neurotechnology should not alter “mental integrity,” or an individual’s sense of self. 
• Free Will: Individuals should retain decision-making control, without unknown manipulation via neurotechnology.
• Fair Access to Mental Augmentation: Cognitive enhancement neurotechnology should be accessible to everyone.
• Protection from Bias: Neurotechnology algorithms should not discriminate.

3. The emergence of neurorights

Advances in neurotechnology, partly funded by large research programs such as the US-based Brain Research Through Advancing Innovative Neurotechnologies (BRAIN) Initiative, have spurred global interest in establishing legal safeguards for the brain and neurodata. In 2019, the Organisation for Economic Co-operation and Development (OECD) developed the first international standards to respond to neurotechnology’s ethical, legal, and social challenges. The OECD’s Recommendation on Responsible Innovation in Neurotechnology provides guiding principles to prioritize safety, inclusivity, collaboration, and trust in neurotechnology. In 2022, the UNESCO International Bioethics Committee issued a report on the ethical issues of neurotechnology and advocated for a comprehensive governance framework.

On a regional level, the Inter-American Juridical Committee of the Organization of American States (OAS) issued a Declaration on neuroscience and neurotechnologies and human rights in 2021. Two years later, the OAS followed up with a set of Principles to align international standards to national frameworks. In the same year, the Ibero-American Network of Data Protection Authorities (RIPD), the main forum for Spanish- and Portuguese-speaking data protection regulators, declared support for the OAS Declaration and Principles and announced the establishment of a working group on neurodata.

Perhaps the most consequential call for action was the 2022 Neurorights Model Law, drafted by the Latin American and Caribbean Parliament (Parlatino), a regional organization that promotes regional integration through legislative harmonization. The model law provides both structure and foundational concepts to regulate neurotechnology, including establishing an independent oversight authority and providing redress mechanisms. 

Transnational stakeholders such as the OAS and Parlatino have played large roles in establishing Latin America as a leading player in the neurorights discussion. However, legislative initiatives at the domestic level may prove more influential, as their impact continues to reverberate in Latin America and beyond.

4. Chile: The first country to protect “mental integrity” in its Constitution

As a pioneer in the neuroprivacy movement, Chile was the first country to amend its Constitution to protect “mental integrity” and neurodata in 2021. Specifically, the provision states that “the law shall regulate the requirements, conditions, and restrictions for [neurodata], and shall especially protect brain activity, as well as the information derived from it.” Furthermore, scientific and technological developments are to be conducted with “respect for […] physical and mental integrity.”

Led by Senator Guido Girardi Lavín and several other legislators, the amendment centered on the individual identity as an intrinsic value of human evolution and referred to physical and psychic integrity as its main elements. The legislators asserted that any technological development affecting mental integrity, as a fundamental right, should be authorized by law. Simultaneously, the same legislators introduced Bill 13.828-19, which aimed to further regulate neurotechnology by requiring consent to use neurotechnology and establishing penalties for noncompliance.

In 2023, only two years after the country’s Constitution was amended, Chile’s Supreme Court became the first court to rule on a neuroprivacy case. The plaintiff, Senator Girardi, alleged that his brain data was insufficiently protected by the US-based Emotiv’s “Insight” device, a headband that records detailed information about the brain’s electrical activity. The Court ultimately found that Emotiv violated Sen. Girardi’s constitutional rights to physical and psychological integrity as well as the right to privacy, setting aside Emotiv’s arguments that the harms were hypothetical. Citing both Chilean domestic law and international human rights law, the Court focused on the fact that Emotiv retained Sen. Girardi’s data for research purposes, even in anonymized form, without obtaining prior consent for this specific purpose. In addition to setting a precedent for neuroprivacy litigation, this case reflects the neurorights movement’s influence beyond the policy sphere.

5. Mexico: Proposed constitutional amendment for neuroprivacy rights

As of March 2024, there are two pending neuroprivacy bills that seek to amend Mexico’s Constitution. The first bill, proposed by Deputy María Eugenia Hernández Pérez, would include the right to individual identity, as well as physical and psychological integrity. The Chilean constitutional amendment’s influence is noticeable throughout the Mexican bill, including language requiring the State to respect mental privacy and integrity. Moreover, the proposal has the same wording as Chile’s constitutional amendment and similarly spotlights the value of individual identity. 

The proposal centers on human identity and its relation to technology, and not solely privacy and data protection, which are already recognized as two separate fundamental rights under Article 16 of Mexico’s Constitution. It includes broad legal safeguards to ensure the confidentiality of neurodata collection, informed consent before access, clear limits on neurotechnologies, and anti-discrimination measures. Moreover, the bill notes that while some local laws protect human rights and neurodata in the context of medical and scientific uses, there is a lack of regulation for non-medical uses.

The second Mexican bill, spearheaded by Senator Alejandra Lagunes Soto Ruiz, would amend Article 73 of the Constitution to provide congressional authorization to pass federal legislation related to artificial intelligence (AI), cybersecurity, and neurorights. Under this authority, Congress could safeguard mental privacy, cognitive autonomy, informed consent for the use of brain data, identity and self-expression, non-discrimination, and equal access to technology. 

Both bills acknowledge that neuroprivacy is an emerging concept and focus on how neurotechnology could jeopardize fundamental rights. Although these bills approach the issue from different viewpoints, they both seek to protect personal data and build citizen trust. Additionally, in November 2023 the Mexican Data Protection Authority published a Digital Human Rights Charter that recognizes the five fundamental neurorights.

6. Brazil: Proposed constitutional amendment and neuroprivacy rights in privacy law

Several neuroprivacy initiatives have gained traction in Brazil. Bill 29/2023, introduced by Senator Randolph Frederich Rodrigues Alves in June 2023, seeks to amend the Brazilian Constitution to include protections for mental integrity and algorithmic transparency. In particular, the proposal highlights that recognizing “mental integrity” is essential to expand the “legal and normative understanding of human dignity in this new digital context” that protects both personal data and the “psychic and physical integrity of human beings.” The proposal was presented to the Senate in June 2023 and is pending until a Rapporteur is appointed to review the bill. ¹ Of note, the Brazilian Constitution was amended in February 2022 to include a right to the protection of personal data, distinct from the right to privacy.

Separately, Bill 522/2022, introduced by Deputy Carlos Henrique Gaguim in March 2022, would amend Brazil’s General Data Protection Law (LGPD) to regulate neurodata as a category of sensitive data. The bill would add a new section to regulate the processing of neurodata, emphasizing that the request for consent must “clearly and prominently indicate the possible physical, cognitive and emotional effects” of processing neurodata. Currently, Article 5 of the LGPD establishes racial and ethnic origin; religious, political, and philosophical affiliations; health, sexual and life data; and genetic and biometric data as categories of sensitive data. However, the proposal highlights the need to include neurodata as a distinct category of sensitive data, not to be confused or associated with biometric data. The bill was approved by the Health Commission Rapporteur in October 2023 and awaits further consideration. 

The neurorights discussion has also made its way into Brazil’s Federal Civil Code. In December 2023, the Sub-Committee on Digital Law of the Commission of Jurists, who are responsible for reviewing the Civil Code, submitted a report that seeks to recognize neuroprivacy under the LGPD. Independently, in December 2023, Río Grande do Sul, Brazil’s fifth-largest state by population, amended its Constitution to include neurorights, specifying mental integrity as a constitutional principle.

7. Other regional initiatives

Similar legislative efforts are underway in the region, with some variations:

• Costa Rica proposed amending the country’s data protection law to include a definition of biometric data which, in contrast to Brazil’s proposal, categorizes neurodata as biometric data.
• Colombia is considering updating its data protection law to include a section specific to the processing of data through AI and neurotechnologies. The proposal sets out specific obligations for accessing and processing neurodata. 
• Argentina has two pending bills: Bill 2446/23 proposed the creation of a bicameral committee to develop a neurorights framework. Separately, another bill would amend the Federal Code of Civil Procedure to allow neurotechnologies that infer mental activity as admissible evidence. 
• Uruguay’s Parliament reported that elected officials have met with their Chilean counterparts to discuss neurorights. In February 2024, Deputy Rodrigo Goñi indicated that Parliament is considering regulating neurotechnologies and providing safeguards for brain integrity and neurodata.

As neurotechnology continues to advance, it raises key questions about how the data involved should be regulated. Latin America is at the forefront of that conversation and has paved the way in recognizing neuroprivacy, from Chile’s Constitution, to Mexico and Brazil’s pending legislation. Regional frameworks, such as the OAS Declaration and Principles, illustrate that neurorights are coalescing on the international level as well. The groundswell of legislative proposals and domestic laws demonstrates that the fight for neuroprivacy is here to stay—and for now, at least, Latin America is the place to watch.

¹ According to the Brazilian Chamber of Deputies Internal Rules, Art. 56, committee bills and other proposals will be examined by a Rapporteur who must issue an opinion.