On 9 August 2023 the Supreme Court of Chile (SCC) ruled in favor of former senator Guido Girardi in a constitutional protection appeal filed against the neurotechnology company Emotiv1 for violating his rights to privacy and psychological integrity, which are enshrined in Article 19 of Chile’s constitution2. The authors of the present piece — the plaintiff, some of his lawyers and legal advisers, and contributors of pro-plaintiff friend-of-the-court briefs — perceive important ethical-legal and policymaking implications of this ruling, the first in history against a consumer neurotech for violating brain data privacy.
In 2022, the plaintiff purchased and used Insight, a wireless electroencephalography device from Emotiv that collects brain data with the aim of interpreting emotions and executing mental commands3. A critical issue with this product was that users could have access to their brain data only if they bought a ‘Pro’ license; otherwise, these data would remain in the company’s cloud system — even in the case of deleted accounts. Since Girardi chose a free license, his brain data were not available to him; however, as per the company’s privacy policies, they may be transferred to third parties.
