Montana Could Soon Be 3rd State with Neural Data Privacy Law

Previously, the Senate passed the bill unanimously on Jan. 28 (see 2503260066), but it had to vote again because the House last month voted 99-0 to pass the measure with an amendment that fleshed out the definition of neurotechnology (see 2503260066). Global pharmaceutical company GSK and a state medical association supported the bill at a January hearing (see 2501240034).

Zolnikov said his bill could be signed in about two weeks. It’s “awesome” to pass “a complete protection of our thoughts [and] ideas … at a time when it’s really necessary,” said Zolnikov, who previously authored the genetic privacy bill and Montana’s comprehensive privacy law. He said the Montana bill is broader than Colorado’s neural privacy requirement, making clear that “you need consent” and have a right to delete.

It's important to protect neural data privacy before it becomes a bigger issue, said the lawmaker. “If we react to something once it's a multibillion-dollar industry, you are doing an uphill battle,” he said. “This is not me making it up from some sci-fi book.” While the technology is new and “clunky,” it exists and more is coming, he said. “So let's put a wall up today” and give industry “the regulatory guidelines on where they need to go and not go.”

Passage of the Montana bill is “great news,” said Anne Cleary, a psychology professor at Colorado State University who worked on a February resolution by the American Psychology Association (APA) on neural data privacy. An “increasing number of states” seem to be working on and passing these types of bills, emailed Cleary, noting that Colorado and California approved them earlier. “Montana can be added to the pioneering states in this regard!” She added that “it is a serious enough and pressing enough issue that it" warrants "national-level legislation, and perhaps as more states pass similar legislation, that will look increasingly possible.”

The APA resolution said that neural and cognitive data is "highly sensitive and individuals should have a basic right to their mental privacy.” Therefore, the APA should advocate “for the development of legislation that provides comprehensive mental privacy protections.”

“People should have the right to control their neural and cognitive data and the information about their mental states and processes that can be derived from it, as well as to consciously choose which aspects of their mental world or existence they would like to disclose to others,” the APA resolution said. “The collection of these deeply intimate data raises concerns about the mental privacy of users whose data are collected, as well as ethical uses of these data.”

Neural data privacy is a “hot topic” for states this year, Morrison Foerster lawyers blogged March 17. They pointed to legislation addressing the subject in Connecticut, Massachusetts, Minnesota, Illinois and Vermont, as well as neural data protection bills passed in California and Colorado. “These legislative developments reflect a growing trend towards strengthening neural data privacy protections in the United States.”

The Neurorights Foundation, which worked on the neural data privacy bills in Montana, Colorado and California, is trying to “put together as much of patchwork approach to protection” as possible “in lieu of a national law,” Executive Director Stephen Damianos told us. The group would strongly support a national law, he said.

Neurotechnologies have existed for decades, but are “rapidly proliferating into consumer spaces,” said Damianos, saying there are now more than 30 direct-to-consumer wearable devices that can record or influence a person’s neural activity. The Foundation did a privacy review of 30 companies’ products and found “enormous divergence” between leading global data protection standards and the companies’ actual practices, he said.

It's important that Montana adapted California’s definition of neural data, said Sean Pauzauskie, the Neurorights Foundation’s medical director, on the same call. That’s important because it says that neural data isn’t inferred from non-neural information and keeps to the medical and scientific definition of neural data, which is “electrical brain information collected by a device capable of doing that and not expanding into things like … cell phone cameras and other types of non-classic neural data collection devices.”

The Montana bill is also the first in the nation to include mental augmentation, which covers devices that “can actually influence neural data” as opposed to just reading it, said Pauzauskie. “We view this as the next frontier of neurorights.”