When Neurotechnology Meets Law: A Conversation With Nita Farahany

As neurotechnology advances at lightning speed, one thing is clear: the law is struggling to keep up. Nita Farahany, a leading expert in neurotechnology, ethics, and law, has dedicated her career to exploring how emerging technologies intersect with cognitive rights. With companies now capable of tracking brain activity through everyday wearable devices, the stakes have never been higher.

Nita explains that current legal frameworks meant to protect human rights are outdated. We sat down with Nita Farahany at the Clio Cloud Conference to discuss the critical role that legal professionals can play in bridging this gap.

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A passion realized

Nita’s journey into neurotechnology law began unexpectedly. “It all goes back to a class on behavioral genetics I took during my master’s program,” she recalled. “There was a chapter in the textbook that looked at the use of behavioral genetics in criminal law, and it sparked an ‘aha’ moment. I had always been passionate about science and the law. I knew then that I wanted to explore the impact of behavioral sciences on the law.”

As her career progressed, so did technology, placing Nita at the forefront of critical discussions. It also underscored the growing need for the law to keep up with the latest scientific advances, and most recently, the rapid rise of brain-tracking devices and workplace monitoring tools.

The legal lag

Privacy laws have traditionally focused on collecting data from the body, such as blood samples under specific conditions. However, Nita points out, most laws don’t contemplate a world where we can access what’s happening inside the brain.

“In the United States, almost every law assumes that mental privacy is inherently protected,” she said. “For instance, you’ll see language in Supreme Court opinions suggesting that no one can penetrate the mind. But neurotechnology is changing that.”

Some states are beginning to address mental privacy. In Illinois, for example, if an employer requires an employee to monitor their fatigue levels through a device, they must provide explicit notice and disclosure requirements under Illinois’s Biometric Information Privacy Act. However, significant gaps remain.

“There are few laws that protect or give you special data privacy when it comes to neural data or cognitive biometric data,” she explains. “We need to treat it as sensitively as we would any other type of personal information.”

Bringing lawyers to the table

Recent years have witnessed a concerted global effort to establish strong laws and regulations surrounding neurotechnology, supported by increasing media coverage on the subject. The problem is that too few lawyers are involved in these critical discussions.

Nita urges legal professionals to learn about neurotechnology and participate in shaping these evolving conversations. “We need a broader set of voices at the table. This rapidly-changing space is set to transform our interactions with technology, and collaborative processes benefit from having many diverse perspectives at the table to ensure they serve the broader public.”

For those lawyers who think this issue won’t affect them, Nita challenges them to reconsider. Neurotechnology is quickly becoming part of daily life, from entertainment devices to health monitoring tools. Clients will soon ask about mental privacy and the protection of their neural data. Informed lawyers will stand out in a competitive space and be well-positioned to answer these questions.

So, what can legal professionals do?

Nita encourages them to stay updated on these issues and, even more importantly, to be where decisions are being made. “Clients want to know that their lawyers are on top of these issues,” she said. “They can serve as observers on committees and reach out to legislatures in their states to be part of the processes. Maintaining a blog that shows your firm is following neurotech developments is a great way to demonstrate you’re at the forefront of this space.”

Using tech to level the playing field

Nita also emphasizes that small law firms have a unique opportunity to excel in this arena. Firms that can demonstrate expertise in emerging technologies will attract clients looking for specialized knowledge.

“AI and other technologies are democratizing the legal field,” she explains. “You don’t need to be a big law firm to be at the cutting edge. In fact, smaller firms that specialize in technology are often more agile and better positioned to lead these conversations. That’s where technology is going to level the playing field. A small firm could be writing these blog posts and establishing itself as the expert on the intersection of neurotechnology and the law.”

Envisioning a daring future

Looking ahead, Nita envisions a future where cognitive liberty—encompassing mental privacy, freedom of thought, and self-determination—is recognized as a universal right. “This should underpin our constitutional rights in the United States and be something that governs every area of law,” she explains.

We need laws that give people control over their minds.

With neurotechnology advancing rapidly, protecting cognitive freedom will soon be as essential as safeguarding freedom of speech or the right to privacy. At the core of this issue, as Nita puts it, is people’s capacity to think freely.

As we integrate more neurotech into our daily lives, the line between what’s private and what’s accessible becomes increasingly blurred. By staying informed and engaged, lawyers can protect their clients and help shape the broader conversation on regulating neurotechnology.

“The benefits of this technology are amazing,” Nita said. “We just need to figure out how to reap the benefits while ensuring it remains empowering rather than stripping us of our autonomy and privacy. There is a utopian potential for this technology that could genuinely benefit us. It’s crucial to get ahead of this and create an empowering narrative.”

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We published this blog post in November 2024. Last updated: November 1, 2024.

Categorized in: Clio, Technology