Neurotechnology advances pose discriminatory and privacy risks, warns the UK's ICO

The Information Commissioner's Office (ICO) is turning its attention to the next emerging technology – neurotechnology, which monitors the human brain – amid the current hype surrounding artificial intelligence. 

A recent report by the UK data protection regulator explores the possible uses for neurotechnology, which is expected to offer significant benefits to a variety of sectors including health, professional sports, personal wellbeing, marketing and entertainment.  

The UK’s Regulatory Horizons Council has predicted that the market for neurotechnology will be valued at $17.1 billion globally by 2026. In the UK public sector, around £98 million was invested in research funding for neurotechnology between 2011 and 2020. 

While the ICO acknowledges the many benefits neurotechnology might bring, it also warns against the dangers, including the risk of discriminatory practices and potential for privacy concerns. The report highlights the need for legal safeguards and ethical considerations to protect individuals from harm, as neurotechnology continues to advance and may soon become a part of our daily lives.  

What is neurodata and neurotechnology?

The terms neurotechnology and neurodata are currently a matter of debate.  

The ICO report defines neurotechnology as "consumer, enterprise and healthcare devices and procedures, both invasive and non-invasive, that directly record and process neurodata for the purposes of gathering data, controlling interfaces or devices, or modulating neural activity".  

Neurodata means, according to the ICO, the "first order data gathered directly from a person’s neural systems (inclusive of both the brain and the nervous systems) and second order inferences based directly upon this data". 

Put simply, neurotechnology refers to devices and methods that interface with the nervous system and human brain. For example, a wearable device such as a headband (a neurotechnology) may be used to gather information on brain patterns (neurodata). The ICO suggests that the headband could be used to collect "first order data" to indicate how alert a person is and, following this "second order inferences" may be drawn about an individual's performance and behavioural patterns.  

While a headband is an example of a non-invasive neurotechnology, the ICO also identifies invasive neurotechnologies (such as surgical implants to directly contact the brain) and semi-invasive neurotechnologies (which may still require surgery, but with reduced risks).  

In what sectors will neurotechnology be used?   

Neurotechnologies are already used in a variety of sectors and are rapidly developing for use in others. These include:    

• Healthcare and medicine. Neurotechnology is currently being used in healthcare and medical sectors, where it is strictly regulated. According to the ICO, it can be used to predict, diagnose, and treat both physical and mental illnesses. For example, electronic implants have already been used to help a paralysed man walk again.  
• Personal wellbeing and sport. Neurotechnology is already popular in the personal wellbeing sector, with individuals using non-invasive wearable devices, such as fitness trackers, to monitor sleep and productivity. The ICO expects the use of neurotechnology in the wellbeing sector to develop further with consumer-targeted devices that can track a user's mood and general health.  
• Marketing and consumers. A key area for development in the medium term is consumer neuromarketing. In the future, non-invasive devices capable of reading responses may be used at home to tailor consumer preferences to products. For example, the ICO suggests neurotechnology-enabled headphones might be used for targeted advertising and commercials. 
• Employment. The employment sector is expected to make increasing use of non-invasive neurotechnology, particularly for employee monitoring, safety, productivity and recruitment.  
• Entertainment. Neurotechnology is already being used in the entertainment sector and is likely to expand in use, particularly in the gaming sectors to offer single player experiences linked to virtual and augmented reality.  

The ICO also recognises the potential use of neurotechnology in the military and educational sectors. However, these are beyond the scope of its report.  

What are the data protection risks?  

While the use of neurotechnology is expected to bring exciting developments across a variety of sectors, the ICO warns of the challenges involved in collecting neurodata.  

As personally identifiable neurodata is considered to be personal information, data protection and ethical risks are a major concern: specifically, compliance with the UK General Data Protection Regulation (GDPR) and discrimination risks.  

UK GDPR compliance 

Gathering neurodata is likely to challenge the ability of organisations to comply with UK GDPR. Neurotechnologies raise significant concerns around whether a person can provide fully informed consent to the use of their personal data – particularly, when the nature of that data is uncertain and may include highly sensitive information, such as an individual's emotional state or mental health.  

Ensuring that individuals can understand the purpose, risks and implications of neurotechnologies will be essential as these technologies become integrated into daily life. Questions around the storage, appropriate retention periods and potential for misuse of neurodata will also need to be addressed.  

Discrimination risks 

The ICO has warned that "newly emerging neurotechnologies risk discriminating against people if those groups are not put at the heart of their development".  

The regulator notes the potential for unfair treatment particularly in areas such as employment, insurance and other services. For instance, specific neuropatterns or information could come to be seen as undesirable by an employer due to ingrained bias. Employees who display those patterns may then be overlooked for promotions or other employment opportunities.  

Establishing appropriate safeguards to protect individual rights and safeguard against unfair treatment will be essential to combat neurodiscrimination and bias decision making.  

Osborne Clarke comment 

The economic value of neurotechnology is expected to grow rapidly in the next few years in the UK and globally.

While there is limited data on investment by private sector companies, the ICO has estimated that around 39 UK firms are currently involved in neurotechnologies. At present, the United States appears to have the largest number of domestic companies involved in neurotechnology globally, with the ICO predicting 386 firms working on its development. 

This growing market for neurotechnology will bring new opportunities for firms across a large variety of industries. However, the ICO report also serves as a reminder that data protection and ethical considerations will need to remain at the forefront of development.  

Both businesses and policy makers will need to work together to ensure appropriate safeguards are in place for the responsible use of neurotechnology and in doing so, fully harness its potential benefits.  

Sarah Denny, Trainee Solicitor at Osborne Clarke, contributed to this Insight.