Although political movements to control consumer neurotechnology are growing, at the moment the traffic of human thoughts that are captured with headbands, headphones and video games is out of control.

The OECD presented a new toolkit on the regulation of consumer neurotechnology on April 23 in Paris, designed to make it easier for policymakers to step up regulation and contain dangerous uses of some of its devices.

In recent years, a growing number of experts have raised alarm bells that brain implants and monitors could be used to manipulate human behavior or attitudes.

In the first recognition of this risk, the 36 member states of the Organization for Economic Cooperation and Development (OECD) issued a formal recommendation in 2019 for governments, companies and researchers around the world to pay greater attention to the possible use misuse of neurotechnology.

First attempt

That recommendation represented the first formally agreed international declaration on the issue, although it has no legal force binding on anyone.

The new set of tools now presented, which recognizes cognitive freedom, marks a departure from the more tolerant approach that prevailed in the 1990s and 2000s, when technological advancement was left more to the market or the curiosity of consumers or individual scientists ( just as is happening now with Generative AI).

This change in tolerant attitude towards neurotechnology is due to the fact that human thoughts are already being trafficked, a completely legal activity that takes place under the protection of a regulatory vacuum that is just beginning to take shape.

That loophole means that companies can collect large amounts of highly sensitive brain data, sometimes for an undetermined number of years, and share or sell the information to third parties, without the consent of those affected.

Some devices that capture brain data – with the potential to resell or share that information – are already on the market, and several startups plan to launch devices soon.

Headbands and headphones

This technology is already used, for example, in wireless headbands or headphones (airpods) that monitor brain activity and help with meditation or treating anxiety or depression, although they are not yet capable of decoding specific thoughts. Some video games also monitor the user's mind to optimize their experience.

The point is that this information can be used for other uses, such as to extract personal inclinations, discover the sexual orientation of a user, or to control the productivity of a company.

And in fact it is already happening: NYT reveals in this regard, citing the Neurorights Foundation as a source, that almost none of the consumer neurotechnology companies restrict access to the neural data of their users. At the moment, there is open bar on the market for the trafficking of human thoughts.

Shy reactions

Given this situation, some countries have already implemented regulatory frameworks to govern the use of brain wave information for commercial purposes. But they are very few, notes the OECD.

In 2021, Chili enshrined the “neurorights” in its Constitution and, in a case last year, its supreme court ordered the deletion of brain data from a neurotechnology company. But it is still not known how to articulate this constitutional right in practice.

And earlier this month, the State of Colorado (USA) passed a law that protects data found in users' brain waves.

Within the EU, Spain Last year, it promulgated the León Declaration to promote dialogue between the European Commission and Member States and protect human rights in the development of its products, especially neurotechnological products.

And the EU also wants to get involved in covering this risk, adjusting the General Data Protection Regulation, the General Product Safety Regulation and the Medical Device Regulation, so that they can cover problematic uses of neurotechnology, or either by creating a specific law to regulate the use of neural information.

But, for now, we are still in a large legal vacuum that leaves the thoughts of users of consumer neurotechnology exposed.

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