Advances in digital technologies, particularly in data analytics and artificial intelligence (AI), have enabled significant progress in datafying the human mind. Two technologies that stand out for their ability to translate – accurately or not – mental faculties, states, and processes into data are emotion technology and neurotechnology. Collectively coined as ‘Mind Datafying Technologies’ (MDTs) in this book, both technologies are increasingly being deployed beyond their traditional applications in the medical field. Driven by leading technology companies, MDTs are being rapidly adopted and commercialised, expanding into sectors such as lifestyle and well-being, marketing, advertising, gaming, smart products, employment, and education. Additionally, law enforcement and the military have shown growing interest in MDTs.
The fast-paced evolution of both technologies, coupled with their likelihood of commercial growth and success, sparks concerns about the adequacy of our legal frameworks. International organisations and advisory bodies have started addressing the risks associated with MDTs in their policy papers, with initial recommendations underway. Neuroscientists, ethicists, legal scholars and policymakers are actively debating the implementation of new governance instruments, including potential new rights related to neurotechnology, often referred to as ‘neurorights’.
A key feature of this book is its approach to viewing the governance of neurotechnology and emotion technology not as separate independent issues, but as two sides of the same coin. While traditional approaches have often considered the challenges related to neurotechnology as an isolated and unique phenomenon, this book argues for a more integrated perspective, specifically beyond the distinct medical sector. It suggests that regulatory efforts towards both fields should be seen as interconnected challenges, requiring a comprehensive, multifaceted response. This approach is beginning to be reflected in emerging policy trends for neurotechnology governance.Footnote 1
Complementing ongoing debates on international governance instruments and the adequacy of existing human rights catalogues, this book deliberately focuses on the exploration of EU secondary law, positioning itself within a multilevel governance framework. Recognising the procedural complexities of adopting new primary law, the study highlights how existing secondary law may offer agile and flexible instruments to address some of the concerns frequently associated with MDTs.Footnote 2 Current developments in EU secondary law underscore the timeliness and relevance of this approach. During the most recent legislative period, EU legislators adopted major general legislation with the intention of substantially shaping the regulatory digital landscape in Europe. In addition to strengthening the general legal framework, they also introduced important sector-specific laws. Several of these new laws are expected to have a profound impact on how MDTs are regulated. Drawing on established legislation, this book places particular emphasis on examining the effects of these newly adopted EU laws.
Delving into the legal analysis, it becomes evident that the General Data Protection Regulation (GDPR) and the Artificial Intelligence Act (AIA) stand out as foundational pieces of legislation, each warranting separate and focused attention before addressing specific domains. The GDPR establishes a distinct regulatory framework for personal data, serving as a cornerstone and constant reference point for all subsequent digital legislation. The restrictive association of emotion technology and neurotechnology with biometric data under the GDPR is discussed in the initial part of the book, highlighting the fundamental complexities this poses for regulating MDTs. The AIA, in turn, provides a groundbreaking regulatory framework for Emotion Recognition Systems (ERS). As a novel legal instrument, it holds significant implications for the regulation of MDTs, both within the EU and on a global scale. Its specificity and recent adoption make it a critical focus of the book’s broader analysis. Together, the GDPR and the AIA establish a foundational basis for sector-specific applications, which are then explored in detail through four selected use cases.
The four selected use cases in Chapters 4–7 represent topics frequently spotlighted in media, civil society, and policy debates. They include examples from the fields of mental health and well-being, commercial and political advertising, as well as workplace monitoring. Domains deliberately not included are the deployment of MDTs by law enforcement and the military. While these applications have garnered significant attention, the legal frameworks governing the domains differ substantially from all other use cases. Addressing these areas would require a thorough analysis beyond the scope of this book. Building upon the legal analysis of the four use cases de lege lata, the book explores a diverse array of available legal instruments de lege ferenda.
Arguably, the in-depth exploration of both established and emerging laws, crucial for understanding and navigating the legal landscape of MDTs, can be daunting – especially for those less familiar with the complexities of EU law and its constant evolution. To address this challenge, the book employs semi-fictional vignettes as a narrative technique, guiding readers through the intricate legal landscape. These vignettes not only bring abstract legal provisions to life but also aim to make them relatable and accessible, helping readers envision their real-world implications.
At the core of the book’s methodological approach lies a use case-based technique. This approach draws inspiration from disciplines such as computer science, business analysis, and systems engineering – fields that frequently analyse complex systems, model interactions and workflows, and optimise system functionalities. When adapted to the legal field, it becomes a valuable tool for analysing complex legal systems, clarifying the interplay both within individual provisions and between different legal elements, and presenting developments in a tangible, comprehensible, and stakeholder-focused manner. This approach is used in the book to sketch a comprehensive picture of the secondary law landscape governing MDTs in selected fields. By examining a substantial body of laws, analysing the intricate interactions among legal components, and delving into critical pain points, the approach provides a detailed and layered understanding of the regulatory environment. The illustrative nature of the technique offers a nuanced perspective on the practical implications of the legal provisions, highlighting gaps, inconsistencies, and ambiguities. Insights derived from the detailed exploration of the legal framework form the foundation for crafting potential policy responses. Hence, this approach bridges the gap between abstract legal analysis and pragmatic policymaking, enabling policymakers and stakeholders to better envision the impact of various policy options.
In keeping with its practical approach, the book does not delve into the philosophical aspects surrounding MDTs, nor does it address broader questions such as the nature of the mind, the mind-body problem, or the metaphysical debates on cognition and consciousness. While these considerations are undoubtedly important, they require a more theoretical exploration, which contrasts with the book’s chosen approach. Similarly, the book does not engage with the societal benefits or harms of MDTs, nor does it examine whether these technologies can accurately identify or infer the states of the mind – an issue often contested by experts, particularly in contexts outside of the medical field.Footnote 3 Acknowledging that MDTs continue to be developed and adopted by the market despite fierce criticism of their scientific validity, the book adopts a distinctly pragmatic perspective. It focuses solely on the regulatory landscape for MDTs and the available instruments to regulate them. In doing so, the book seeks to contribute to ongoing policy debates by providing an additional perspective and resource for balanced decision-making, with the hope of encouraging further discussion on thoughtful governance and effective regulation for MDTs.
