The evolution of new technologies and the increase brought about by artificial intelligence techniques in the field of neuroscience have been challenging already established judicial systems and causing some concepts, such as privacy, intimacy and human dignity, to be reinterpreted.

Brain imaging and functional tracking techniques are widely used in medicine to understand how the human brain works and to detect people's mental and behavioral states, which can consequently improve the well-being of patients suffering from neurological disorders. At the same time, these same technologies, when misused or implemented inappropriately, increase the risk of violating the right to privacy, causing physical or psychological harm or even allowing undue influence on people's behavior.

Based on these premises, several studies have been published in Europe and the United States and some initiatives have been developed to recommend that some rights, such as cognitive freedom, privacy and mental integrity, for example, be raised to a special category of human and/or fundamental rights, so that individuals can adequately protect themselves in the face of rapid and unprecedented advances in neurotechnology.

In 2019, the Organization for Economic Cooperation and Development (OECD) published recommendations on the development and innovation of neurotechnology. Its guidelines, recognizing that the rapid evolution of neurotechnology is generating a scenario of uncertainty that may require more effective forms of governance, list principles related to ethical, legal and social issues of neurotechnology.

Chile, a pioneer in the subject, raised neurorights to constitutional status and, influenced by this discussion in the neighboring country, Brazil initiated this discussion through the presentation of PL 522/22, which aims to amend the LGPD and include neural data as a type of sensitive data under the protection of the law and attribute to it the safeguards granted by this legislation.

Despite the merit of PL 522/22 in bringing this discussion to the surface, this is not, in our understanding, the most appropriate way to resolve and discuss this matter.

In general, laws that protect personal data were introduced to combat the effects of the commercialization of data obtained through surveillance. The general concern of putting individuals back in control of their information is at the heart of these laws. Here in Brazil, through Constitutional Amendment No. 115, enacted in 2021, the individual's informational self-determination was elevated as a fundamental right, in order to provide individuals with real and permanent power of control over their own data, freeing them from external influences and giving them knowledge of how third parties handle information concerning them.

However, despite the enormous advances that data protection legislation has promoted over the last few years, it is clear that it does not address all the especially ethical dilemmas arising from technological advances.

This is one of the points on which we understand that Bill 522/22 is not appropriate. The discussion is not restricted to data protection and should be broadened to the technical and legal scope so that it can be addressed in specific legislation and, perhaps, raised to a fundamental right that protects the privacy and integrity of information obtained by the human mind.

Data protection legislation has not offered adequate protection for these advances in neurotechnology, so rather than just releasing this information and suggesting the protection of only data within the protection provided by the LGPD, the normative discussion must take place in an interdisciplinary manner among society, in the technical, medical, legal and technological spheres.

The topic is complex and deserves, before any definition, a broad and organized debate, but it seems to us, at first glance, that, for data protection purposes and, if neural data is considered as health data, there would already be protection determined in the legislation related to sensitive personal data.
It is very important that before any legislative development on the subject, the scientific and legal communities work together to better define the limits, capabilities and intended direction, since these are issues whose complexity can only be addressed through frank and interdisciplinary dialogue.

Understanding how the brain works, defining the limits of neurotechnology, and mapping the possibilities of harm caused to individuals, especially with regard to their free development, is essential. However, we understand that this debate should not be held by changing the LGPD. It is necessary, initially, to discuss the peculiarities of the topic before hastily including changes in legislation that does not seem to us to be the most appropriate for dealing with the topic.

Dr. Ellen Carolina da Silva