By Sally Vazquez-Castellanos, Esq.
Originally published on Perspectives: Technology, Global Privacy & Data Protection on October 24, 2025.
(Informational only; not legal advice.)
This morning’s conversation with ChatGPT.
Editorial Statement:
“The human mind is not a marketplace. Neural data deserves the same legal protection as genetic or biometric data.”
—Perspectives Editorial Commentary, Sally Vazquez-Castellanos.
A New Frontier in Privacy Law
On April 2024, Colorado became the first U.S. state to formally protect brain-wave and neural data under consumer privacy law. Governor Jared Polis signed a groundbreaking bill recognizing brain-activity data — such as electrical patterns or signals collected through headsets, wearables, or brain-computer interfaces — as “sensitive personal data.”
(Brooks, Brad. Reuters, April 18, 2024)
This move signals a paradigm shift: data once confined to neuroscience labs now flows through commercial devices that promise productivity, relaxation, or entertainment. Colorado’s law acknowledges that when consumer technology begins reading neural signals, privacy becomes a question of mental integrity.
What the Law Does
The Colorado amendment to its state privacy act requires explicit consumer consent before companies collect or process brainwave-related data. It places neural data alongside other highly protected categories like genetic, biometric, and sexual-orientation data.
In short, the law:
Defines neural data as information derived from brain or nervous-system activity measurable by a device. Classifies it as sensitive information under Colorado’s privacy framework. Requires opt-in consent for its collection and processing. Signals that neuro-devices, even if marketed as “wellness” tools, fall within privacy regulation when they record or interpret mental activity.
Legal experts view this as a direct response to the unregulated consumer neurotechnology market, which includes devices designed for gaming, meditation, education, and attention-tracking — all capable of producing data reflecting cognitive or emotional states.
Why It Matters for Consumer Products
The law draws a bright line between data about behavior and data about thought. Unlike location history or browsing patterns, neural data can expose mood, focus, fatigue, or intention — metrics of consciousness itself.
This evolution raises urgent questions for data-protection law:
Depth of intrusion: Neural data may reveal emotions or unconscious reactions, crossing traditional privacy boundaries.
Commercial use: As companies explore brain-controlled interfaces for advertising, education, and work, monetization of thought data becomes a realistic risk.
Regulatory gap: Most neuro-devices are not regulated as medical devices, meaning there were few safeguards before Colorado’s intervention.
As the Future of Privacy Forum notes, the challenge is definitional: neural data can arise from EEG headsets, fMRI scans, or inferred “mental states” processed through AI analytics. That ambiguity complicates compliance and risk assessment.
Neural Technology 101 — Understanding fMRI
Functional Magnetic Resonance Imaging (fMRI) is a neuroimaging technique that maps brain activity by detecting changes in blood flow.
How it works:
Active brain regions consume more oxygen; fMRI detects this shift.
What it shows:
Unlike a standard MRI, fMRI captures which brain areas engage during specific tasks, thoughts, or emotions.
Why it matters:
Because it can reveal patterns tied to decision-making, empathy, pain, or even deception, fMRI data sits squarely within the emerging definition of neural data.
Privacy concern:
If such scans were commercialized or analyzed by AI models, they could expose mental states far beyond traditional health or biometric data. Colorado’s recognition of brain-wave information as “sensitive” anticipates this risk.
Connecting the Dots: COPPA and Children’s Protection
The Children’s Online Privacy Protection Act (COPPA) already restricts online data collection from minors under 13, requiring verifiable parental consent and purpose limitation.
While COPPA doesn’t yet cover neural data, its framework provides a foundation for how regulators might treat neurotechnology used by children — for example, brainwave-tracking toys or learning tools.
Key compliance takeaways for companies targeting young users include:
Obtain verifiable parental consent before any brain-related data collection. Provide clear disclosures explaining what neural signals are collected and why. Prohibit profiling or targeted advertising using children’s neural information.
When paired with Colorado’s statute, COPPA may soon evolve into a broader regime for neuro-developmental data protection — a term privacy lawyers may soon need to define.
Implications for Industry and Regulation
Colorado’s action could mark the beginning of a national trend. Policymakers in California, New York, and Washington D.C. have signaled interest in neural-data regulation, while members of Congress have urged the Federal Trade Commission (FTC) to establish consumer safeguards.
(U.S. Senate Commerce Committee Letter, April 2025)
If replicated elsewhere, these measures could:
Elevate cognitive liberty as a recognized human right within digital-privacy frameworks. Require opt-in consent and purpose limitation for all neuro-data collection. Mandate data minimization and retention limits aligned with medical-grade confidentiality. Encourage privacy-by-design for brain-computer interface products.
For developers, this means treating neural signals as biometric+ data — a class demanding the highest security standards. For consumers, it means greater transparency and control over what their devices know about their minds.
The Broader Ethical Question
At stake is more than compliance. It is the definition of mental autonomy in a digital world.
If thought can be recorded, analyzed, and sold, then traditional privacy laws — written for fingerprints and credit cards — may be obsolete.
As Chile, Spain, and the OECD explore “neurorights” frameworks, the U.S. faces a pivotal choice: whether to extend constitutional concepts like liberty and self-incrimination into the cognitive realm. Colorado’s step, though limited to consumer devices, points in that direction.
Practical Guidance for Practitioners and Companies
For privacy counsel and compliance teams:
Update data-mapping inventories to include any brain or neural signal data collected by apps or devices. Treat neural data as sensitive under both state and federal privacy regimes. Ensure explicit consent mechanisms and deletion rights are clearly documented. Review cross-border transfers if neural data is shared with vendors or AI-training systems. Apply heightened safeguards when children or educational contexts are involved.
Conclusion
By enacting the first statute protecting consumers’ brainwave data, Colorado reframed privacy for the 21st century. The legislation recognizes that data protection must evolve from “who we are” to “how we think.”
As wearable technology grows more intimate — reading not just our steps and heart rate but our stress, attention, or intent — the line between consumer convenience and cognitive intrusion grows thin.
Colorado’s new law invites every other jurisdiction to ask the same question: Where does privacy end, and the mind begin?
Sources
Brooks, Brad. “First Law Protecting Consumers’ Brainwaves Signed by Colorado Governor.” Reuters, April 18, 2024. https://www.reuters.com/technology/first-law-protecting-consumers-brainwaves-signed-by-colorado-governor-2024-04-18/
Iliopoulos, Kristina & Perkins, Nancy L. “Neural Data Privacy Regulation: What Laws Exist and What Is Anticipated?” Arnold & Porter Advisory, July 22, 2025.
Spivack, Jameson. “The ‘Neural Data’ Goldilocks Problem: Defining Neural Data in U.S. State Privacy Laws.” Future of Privacy Forum Blog, Aug. 12, 2025.
Federal Trade Commission. “Children’s Online Privacy Protection Rule (COPPA).” https://www.ftc.gov/legal-library/browse/rules/childrens-online-privacy-protection-rule-coppa
U.S. Senate Committee on Commerce, Science & Transportation. “Cantwell, Schumer, Markey Call on FTC to Protect Consumers’ Neural Data.” April 2025.
Editorial Disclosure
This article includes an original editorial statement crafted by the author with assistance from ChatGPT5 to summarize emerging ethical and legal principles in neural-data protection.
It is not a direct quotation from Reuters or any public official. All factual material regarding the Colorado legislation is derived from Reuters reporting and cited policy analyses.
Legal Disclaimer
This article is provided for educational and informational purposes only and does not constitute legal advice. Readers should consult an attorney for guidance regarding specific circumstances.
About the Author
California Attorney and Shareholder at Los Angeles-based family law firm Castellanos & Associates, APLC. Sally focuses on writing about legal issues at the intersection of children’s privacy, global data protection, and the impact of media and technology on families.