The Illusion of Distinction in ‘Neural Data’ Governance: Rethinking United States Consumer Data Protections Through a European Lens

Abstract Neurotechnology-derived data faces increasing challenges due to the lack of salient policy and regulatory guidance. Current legal frameworks produce inconsistencies in how data is regulated, which constrains both harmonization and standardization in the consumer domain. This Article begins by reviewing the current state of data protections in the United States that are relevant to consumer neurotechnology. It then examines the safeguards available within the European Union. As part of our comparative analysis, we assess how these legal frameworks apply to neural data collected by 47 different consumer neurotechnology wearables from 30 different companies. Our findings indicate that discrepancies in the definition of ‘neural data’ lead to differing levels of protection. Given that consumer neurotechnologies readily cross borders, such discrepancies may leave consumers exposed to devices developed under weaker protections, reinforcing the need for at least partial regulatory alignment. While establishing a universal definition of ‘neural data’ is conceptually appealing, we argue that it should not distract from the broader issues that give rise to the need for such a definition in the first place. Ultimately, our research suggests that policymakers may be better served by regulating the outcomes of data use rather than focusing exclusively on the data’s origin. Such an approach could better address the tension between promoting innovation, protecting individual rights, and ensuring product safety.