Protecting the Last Private Frontier: Neurorights, Brain-Data Privacy and The Indian Legal Landscape-Lessons from Chile

Abstract

The rapid development of neurotechnology, artificial intelligence (AI), brain-computer interfaces (BCIs), electroencephalography (EEG), neuroimaging and other brain-sensing technologies is creating new possibilities for understanding and interacting with the human brain. These technologies offer significant benefits in healthcare, neurological rehabilitation, assistive communication, scientific research and human-computer interaction. At the same time, they generate highly sensitive forms of information commonly referred to as neurodata or brain data. Unlike conventional personal information, neurodata may reveal, or potentially permit the inference of, aspects of a person\'s cognitive condition, emotional responses, attention, preferences, neurological characteristics and behavioural patterns. This raises important questions concerning privacy, autonomy, dignity, freedom of thought and mental integrity. The emerging concept of \"neurorights\" seeks to address these concerns by developing legal and ethical safeguards for the human mind. Chile represents an important comparative example because its Law No. 21.383 of 2021 amended Article 19(1) of the Chilean Constitution to require that scientific and technological development serve persons and respect physical and psychological integrity, with particular protection for brain activity and information derived from it. The subsequent decision of the Chilean Supreme Court concerning the Emotiv Insight EEG device further demonstrated the practical legal significance of brain-data protection. India does not presently have a dedicated comprehensive neurorights statute. Nevertheless, the constitutional jurisprudence concerning privacy, dignity, autonomy and mental integrity provides an important foundation. In particular, Justice K.S. Puttaswamy (Retd.) v. Union of India recognized privacy as a constitutionally protected right and emphasized the relationship between privacy, autonomy, dignity and the sanctity of the mind. Similarly, Selvi v. State of Karnataka addressed the constitutional implications of techniques such as narco-analysis, polygraph examination and Brain Electrical Activation Profile testing, thereby providing an important foundation for discussions concerning mental privacy and compelled access to information associated with the mind.

Introduction

The text examines the legal, ethical, privacy, and cybersecurity challenges created by neurotechnology and neurodata, with a particular focus on whether India’s existing legal framework is sufficient to protect information derived from the human brain.

Modern technologies such as EEG, Brain-Computer Interfaces (BCIs), neuroimaging, neural sensors, and AI/ML can collect and analyze brain activity. Unlike ordinary personal data, neurodata may allow systems to infer sensitive information about a person's attention, emotions, preferences, behavior, neurological conditions, and cognitive processes. This creates concerns not only about traditional privacy but also about mental privacy, cognitive liberty, mental integrity, autonomy, and human dignity.

Neurorights

The paper introduces the concept of “neurorights,” which refers to proposed legal and ethical protections for the brain and information derived from it. Major neurorights include:

• Mental privacy
• Cognitive liberty
• Mental integrity
• Personal identity
• Protection against discrimination based on neurodata

The growing use of AI makes these concerns more serious because AI can identify patterns and make inferences from neural signals that individuals may never have consciously disclosed.

India and Chile

Chile is presented as an important international example. Its Law No. 21.383 (2021) amended the Constitution to address protection relating to brain activity and information obtained from it. A Chilean Supreme Court case involving the Emotiv Insight EEG headset further demonstrated the practical legal implications of neurodata protection.

India does not currently have a dedicated comprehensive neurorights law. However, existing constitutional and legal protections provide a foundation for protection. In particular:

• Article 21 protects life and personal liberty.
• Justice K.S. Puttaswamy v. Union of India recognized privacy as a fundamental right connected to dignity and autonomy.
• Selvi v. State of Karnataka addressed constitutional concerns surrounding techniques that obtain information related to mental processes.
• The Digital Personal Data Protection Act, 2023 and Digital Personal Data Protection Rules, 2025 provide a broader framework for digital personal data protection.

The paper questions whether these general data-protection rules are sufficient for the unique risks associated with neurodata.

Research Methodology

The study uses a doctrinal, comparative, and interdisciplinary methodology. It examines:

1. Indian constitutional provisions and case law.
2. Indian data-protection legislation.
3. Chilean neurorights law and jurisprudence.
4. Neurotechnologies such as EEG, BCIs, neuroimaging, and neural sensors.
5. AI/ML-based processing of neural signals.
6. Privacy and cybersecurity risks throughout the neurodata lifecycle.

The technical process is broadly described as:

Neural activity → Sensor/EEG → Signal acquisition → Signal processing → Feature extraction → AI/ML analysis → Inference

Major Risks Identified

The paper identifies several risks, including:

• Unauthorized collection of neural information.
• Unauthorized access and data breaches.
• Secondary use of neurodata.
• Commercial exploitation.
• AI-based profiling and behavioral inference.
• Algorithmic discrimination.
• Workplace and institutional surveillance.
• Cyberattacks.
• Unauthorized sharing with third parties.
• Potential interference with cognitive processes.

Proposed Framework for India

The paper proposes a neurodata protection framework based on:

• Stronger classification of neurodata.
• Specific and informed consent.
• Mental privacy protections.
• Data minimization and purpose limitation.
• Restrictions on high-risk applications.
• AI transparency and accountability.
• Strong cybersecurity controls.
• Independent regulatory and ethical oversight.
• Protection for legitimate medical and scientific research.

It recommends privacy-by-design, meaning neurotechnology should incorporate encryption, authentication, access controls, limited data collection, and limited data retention from the beginning.

Future Directions

Future regulation should address emerging technologies such as neural implants, advanced BCIs, and AI-based brain-signal analysis. The paper also recommends exploring privacy-preserving technologies such as federated learning, differential privacy, homomorphic encryption, and secure multi-party computation.

Conclusion

Neurotechnology and AI are opening up new opportunities in healthcare, research and human-computer interaction, but also present serious risks to mental privacy, autonomy and human dignity. Neurodata can potentially reveal sensitive information about cognitive and neurological states which is different from ordinary personal data. Chile is a key example of constitutional protection for brain functioning and India’s privacy jurisprudence under Article 21 provides a basis for future protection of neurorights. But there is currently no exclusive neurodata framework in India. Thus, a balanced approach of strong consent, data minimization, cybersecurity, AI accountability and regulatory oversight is needed to protect individuals while supporting responsible neurotechnology innovation.

References

[1] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, Supreme Court of India. [2] Selvi & Ors. v. State of Karnataka & Anr., (2010) 7 SCC 263, Supreme Court of India. [3] Government of India, Digital Personal Data Protection Act, 2023, Act No. 22 of 2023. [4] Ministry of Electronics and Information Technology, Government of India, Digital Personal Data Protection Rules, 2025. [5] Chile, Law No. 21.383, Constitutional Amendment concerning scientific and technological development and protection of brain activity and information derived from it, 2021. [6] Supreme Court of Chile, Rol No. 105.065-2023, decision of 9 August 2023, concerning neurotechnology, personal data and protection of brain activity. [7] Cornejo-Plaza, I., Cippitani, R., & Pasquino, V. (2024). \"Chilean Supreme Court ruling on the protection of brain activity: neurorights, personal data protection, and neurodata.\" Frontiers in Psychology. [8] Yuste, R., Goering, S., Arcas, B. A. y, Bi, G., Carmena, J. M., Carter, A., Fins, J. J., et al. (2017). \"Four ethical priorities for neurotechnologies and AI.\" Nature, 551, 159–163. [9] Indian Journal of Legal Review, \"The First Amendment and the \'Right to Mental Privacy\': Constitutional Protections for Neural Data under the Indian Constitution.\" [10] Indian Journal of Legal Review, \"Neuro-Rights and the Indian Constitution: Safeguarding Cognitive Liberty in the Age of Brain Surveillance.\" [11] Zúñiga-Fajuri, A., et al. Scholarly discussions concerning constitutional protection of brain activity and information in Chile. [12] Relevant literature concerning neurotechnology, mental privacy, cognitive liberty, artificial intelligence, data protection and human rights.

Copyright

Copyright © 2026 Anjali T C, Sulfath K V, Surumy Sulthana . This is an open access article distributed under the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.