Neuroprofiling: towards a legal framework for the protection of mental privacy in the face of neurotechnology

Abstract

For the first time in history, humanity is confronted with the possibility that the mind may cease to be an impenetrable realm. The steady development of neurotechnologies capable of recording, inferring and modulating brain activity threatens to open up access to the most intimate, private and personal sphere we possess. The law is thus faced with a prospect as fascinating as it is unsettling: that people’s brain activity may become raw material for profiling us—who we are, what we feel and what we are likely to do. This article conceptualises “neuroprofiling” as a specific category of neurodata processing aimed at assessing, classifying or predicting traits, states, behaviours and inclinations, including subconscious ones, and argues that this practice turns the traditional notion of profiling into an activity that directly affects mental privacy, decisional autonomy and even freedom of thought. On this basis, it (i) analyses scenarios in which neurotechnologies such as brain–computer interfaces, in combination with artificial intelligence systems, make it possible to exploit individuals’ neural signatures, (ii) assesses the risks associated with the extraction, inference and possible manipulation of mental contents, and (iii) explores international and European regulatory instruments (the General Data Protection Regulation, the Digital Services Act and the Artificial Intelligence Act) that can currently be relied upon to protect mental privacy against the unprecedented threats posed by these forms of processing.