The popularity of wearables such as smartwatches and fitness trackers is on the rise in Australia. These devices track our body movements and vital signs, providing data throughout the day. In addition to these wearables, there is a growing market for neurotechnology, which directly engages with the brain. Neurotechnology includes devices and procedures that access, assess, emulate, and act on neural systems.
While much of neurotechnology is still in development or limited to research and medical settings, consumers can already purchase headsets that use electroencephalography (EEG) to measure brain activity. These headsets, often marketed as meditation headbands, provide real-time data that can be accessed through an app. While these devices can be beneficial for meditation, sleep monitoring, and wellness improvement, they also raise privacy concerns as brain activity is personal data. This is especially concerning when it comes to EEG headsets and wearables designed for children.
The collection of neural and cognitive data by wearables has led to a “gold rush” in data mining by companies seeking to develop and improve their products. The Australian Human Rights Commission has identified several risks to human rights posed by neurotechnology, including privacy and non-discrimination. It is crucial for legal scholars, policymakers, lawmakers, and the public to address these concerns.
The collection of cognitive and neural data, particularly from children, raises significant privacy concerns. Currently, Australia’s privacy legislation does not specify an age at which a person can make their own privacy decisions, leaving children unprotected. An inquiry should be conducted to investigate the extent to which neurotechnology companies collect and retain data from children in Australia.
Furthermore, the private data collected by these devices is often fed into AI algorithms, which raises additional concerns about consent and manipulation of datasets. Users should have transparency regarding the data collected by their wearables and how it is used.
To address these issues, Australia’s privacy laws should be updated to provide robust privacy protections for neurotechnology. One potential solution is to work in conjunction with the Therapeutic Goods Administration (TGA), which regulates medical devices in Australia. This would ensure that wearables, including EEG headbands, fall under the TGA’s oversight and align with their regulations. Additional oversight should be established to monitor neural data collection by companies within and outside Australia, ensuring compliance with privacy regulations and preventing unauthorized data collection or surveillance.
Users should also have the right to access their neural and cognitive data and the option to have it permanently erased. By implementing these reforms, Australia can become a global leader in privacy protection and ensure that wearable tech benefits users while safeguarding their privacy rights.
