Would you trust your boss with data about your brain? California moves to regulate neurotech

Brain sensors and implants are giving people the ability to control computers, robots and wheelchairs without moving a muscle. Paired with algorithms, the devices can also predict when people are most likely to be productive and when to take a break.

It’s a technology few Californians have used and many likely don’t know exists. But neurotechnology and brain data privacy is increasingly a target for regulation in the California Legislature.

Two years ago, lawmakers extended state digital privacy law protections to brain data. This year, a bill to restrict how employers use the data has cleared the Assembly and made most of its way through the Senate, as has another measure blocking the sale of brain data and other sensitive personal information. In January, new privacy agency rules go into effect that will protect more people from businesses that use AI to make significant decisions about their lives including systems that utilize brain data and the kind made to operate in the workplace.

Neurotech systems gather information using computer chips implanted in the brain or sensors packed into devices like earbuds, headbands, wristbands, or via augmented reality headsets. 

Some uses are clearly beneficial: Helping blind people see, people with paralysis speak, and people with neurological disorders work and communicate. 

But policymakers and critics of the technology are concerned about its potential to monitor people and make predictions about them, especially in the workplace. For example, brain data can be analyzed to detect mental health disorders like depression and PTSD, potentially allowing for discriminatory hiring or firing decisions. The technology can also be used to predict words or images that form in a person’s mind, raising the possibility that in the future managers could utilize brain data to get the upper hand in salary negotiations or short-circuit union organizing. Some people concerned about the technology describe themselves as part of a mental privacy movement.

Currently, neurotechnology in the workplace is often used to detect focus or fatigue. Hitachi’s SmartCap brain-monitoring headbands are designed to keep tabs on the alertness of people working in sensitive industries like trucking and mining. Employees at an electric power company in China have reportedly been sent home or removed from critical posts if a warning is issued based on neural sensors in their hat.

Many neurotech companies call California home, including brain-implant makers Neuralink and Science Corporation and augmented reality startup Cognixion. California-based tech giant Meta is exploring ways to integrate brain data into its smart glasses. 

California lawmakers are looking to regulate the nascent sector before societal harms become commonplace as they did with AI and threats to digital privacy. Other states are also regulating neurotech: Colorado, Connecticut, Montana and Vermont already protect brain data to some extent. And this year Alabama, Illinois, New York, Vermont and Virginia are considering bills to regulate, or further regulate, the use of brain data. A United Nations body introduced the first global standards for how to treat neural data last year, and in February, Canada moved to protect the brain data of its citizens.

In California, Assemblymember Isaac Bryan, a Democrat from Inglewood, is pushing Assembly Bill 1883, which seeks to regulate the use of what’s known as bossware in the workplace and prohibits the collection of brain data by employers unless that data is used for safety. Another bill would expand state privacy law to prohibit the sale of sensitive personal information, which includes neural data.

Bryan said his bill is about ensuring that surveillance technology does not make the workplace hostile to people who are just trying to make a living.

“Much of what’s in our bill is cutting-edge technology or technologies that are emerging in real time, and we are trying to address easily predictable concerns before they hit the workplace,” he said. “You’d rather not have horror stories.”

Bryan’s bill drew opposition from major employers, including local governments and groups that represent assisted living facilities, grocers, hospitals, and wine growers. Opponents argue the measure is too broad and would prevent them from using tools that ensure safe driving, detect theft and stop inappropriate behavior toward customers.

The regulatory interest comes as Meta’s Neural Band begins to connect with smart glasses and neurotech startups seek to integrate their tech with Apple’s Vision Pro augmented reality headset. Meanwhile, the U.S. Food and Drug Administration has extended breakthrough device designation to many neurotech companies, which allows businesses to market hardware that’s in clinical trials and gives them an expedited path to commercial availability.

Nita Farahany is a Duke University professor who advises lawmakers on mental privacy protections. She fears that without adequate protections, workers may self-censor by avoiding thinking about things that could upset their employers like organizing a union. She said workers at neurotech companies have told her their employers are deciding their business model now, in particular whether to sell subscriptions, sell expensive devices or sell cheap devices and monetize the brain data of their customers.

“We’re at a critical decision point for most of the neurotech companies,” she said. “Privately all of them are grappling with this right now.”

Legislation like the bill that would prohibit the sale of neural data and other sensitive information may make that decision for small companies, Farahany said, but that won’t make a difference for tech giants like Meta if they choose to keep brain data for their own purposes such as personalized advertising.

Virtually all companies developing non-invasive forms of brain-computer interface technology have poor privacy practices written into their terms of service, according to a study by Stephen Damianos of the Neurorights Foundation, which supports more regulation of neural data. The 2024 study found that two-thirds of companies surveyed allowed data sharing with third parties.

Damianos said data collection is poised to ramp up as devices and the algorithms they use to interpret brain data improve. Without regulation, “enormous new risks emerge that can lead to people getting excluded from jobs or penalized by insurance companies or monitored at work,” he added. “So there’s an urgent need to act now before it becomes the norm that brain data is accessed without consent or used to influence decisions.”

California startups building brain tech

California-based makers of neurotechnology emphasized the benefits of their products and said they are involved with international efforts to adopt standards for the use of brain data in an ethical way.

Cognixion, which is based in Santa Barbara, makes headsets that can overlay useful information on top of a view of a user’s surroundings, technology known as augmented reality. Cognixion’s headset is also packed with brain data sensors, allowing people with neurological disorders like ALS to use their head movement, mind and eyes to interact with apps like Slack to communicate with coworkers or Outlook to send emails. Founder and CEO Andreas Forsland told CalMatters that neurotechnology developed for people with ALS could make life better for everyone, in much the same way that providing automatic doors and curb cut outs for people in wheelchairs aids everyone’s mobility. 

He believes it’s inevitable that brain data will be broadly used “either for understanding and optimizing human performance or providing an alternative to hands-on control.”

Emotiv, based in San Francisco, makes earbuds with sensors that measure electrical activity in the brain. The company then uses algorithms to predict what these signals mean. Emotiv designs its earbuds to give people insights into how to go about their entire day. It wants to help users find and choose appropriate interventions for when they are stressed or tired, said Emotiv Chief Commercial Officer Kim Old.

The company also is working to make its products useful in workplaces and to the corporations that run them. The company says SAP used Emotiv tech to personalize employee training based on brain activity, Dell used brain data to personalize employee break schedules, and real estate company JLL used brain data to explore whether office layouts influence employee performance. Each of those projects were experiments, Old said, and Emotiv maintains that brain data deserves sensitive treatment, should be collected with consent, and people deserve control over how their brain data is used or shared.

“We do not believe neural data should be used for covert or coercive workplace surveillance,” Old told CalMatters in an email in June.

Alexander Kies is a postdoctoral researcher at RWTH Aachen University in Germany who studies how consumers react when interacting with employees that use neurotech to do their jobs. He thinks neurotech that doesn’t require surgery will spread first in the workplace and that employers will start with monitoring brain data to help prevent worker fatigue then move on to using brain data to inform management decisionmaking. Once that happens it will become increasingly difficult to tell whether managers collect data to protect your well-being or control every part of your life.

“My take on this is these management tasks would creep in,” he said. “We’re taking away agency from employees.”

Guarding brain data in California

Though California lawmakers have been pioneers in regulating the use of neural data, last year there was a retreat. A bill regulating the use of automated decision systems in the workplace was amended to remove references to neural data in order to garner enough votes to pass. The watered-down measure was ultimately vetoed by Gov. Gavin Newsom, who said it would have placed overly broad restrictions on businesses.

The challenge that lawmakers and regulators face, said the bill’s coauthor, Stockton Democratic Sen. Jerry McNerney, is how to put guardrails in place that protect workers from harm but still allow employers to explore potential opportunities of the technology they can take advantage of.  The measure Newsom vetoed, Senate Bill 7, included brain data, he said, because “that’s the most personal thing you have, your brain.”

“We want to make sure that neural data isn’t used to predict behavior that would cause you to punish an employee so no predictive algorithms are allowed,” he said during a panel conversation hosted by CalMatters at James Irvine Foundation offices in San Francisco last year. 

Sara Flocks of the California Labor Federation, which supports bills to regulate the use of worker brain data, said brain data has the potential to be used to repeat mistakes made during the Industrial Revolution, when initiatives to squeeze performance efficiency out of employees led to poor working conditions.

That mistake can be repeated in the future with brain data and today with AI, she said, pointing to a recent survey that found that one in five managers use automation for hiring, firing, or promotion decisions, and a 2023 survey found that three out of four employers use some form of employee surveillance or bossware.

Farahany said neural data isn’t today revealing as much about workers as other information, such as their keystrokes, social media activity or heart rate. But that may change as improvements are made to the hardware that taps into brain data and the AI that translates that data.

Any gains from neurotechnology could be undermined by a loss of trust and autonomy among employees if they feel their privacy and mental self determination are negatively impacted, Farahany argued in her book, The Battle for Your Brain.

What’s at stake, she said, is not just the invasion of your privacy or the possibility that AI deployed by your employer may predict how often you have negative thoughts about your boss. Without privacy protections, this technology can undermine cognitive freedom and your ability to function as an autonomous, independent person. 

“There’s an urgent need to protect mental privacy and self determination,” she told CalMatters. “It’s part of a bigger picture that needs to be addressed.”