California moves early to regulate workplace neurotechnology

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Illustration by Adriana Heldiz, CalMatters; iStock

In summary

Brain sensors are advancing, and California companies, lawmakers and unions are jockeying to shape how the resulting data can be used.

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Brain sensors and implants are giving people the ability to control computers, robots and wheelchairs without moving a muscle. Paired with algorithms, the devices can also predict when people are most likely to be productive and when to take a break.

It’s a technology few Californians have used and many likely don’t know exists. But neurotechnology and brain data privacy is increasingly a target for regulation in the California Legislature.

Two years ago, lawmakers extended state digital privacy law protections to brain data. This year, a bill to restrict how employers use the data has cleared the Assembly and made most of its way through the Senate, as has another measure blocking the sale of brain data and other sensitive personal information. In January, new privacy agency rules go into effect that will protect more people from businesses that use AI to make significant decisions about their lives including systems that utilize brain data and the kind made to operate in the workplace.

Neurotech systems gather information using computer chips implanted in the brain or sensors packed into devices like earbuds, headbands, wristbands, or via augmented reality headsets.

Some uses are clearly beneficial: Helping blind people see, people with paralysis speak, and people with neurological disorders work and communicate.

But policymakers and critics of the technology are concerned about its potential to monitor people and make predictions about them, especially in the workplace. For example, brain data can be analyzed to detect mental health disorders like depression and PTSD, potentially allowing for discriminatory hiring or firing decisions. The technology can also be used to predict words or images that form in a person’s mind, raising the possibility that in the future managers could utilize brain data to get the upper hand in salary negotiations or short-circuit union organizing. Some people concerned about the technology describe themselves as part of a mental privacy movement.

Currently, neurotechnology in the workplace is often used to detect focus or fatigue. Hitachi’s SmartCap brain-monitoring headbands are designed to keep tabs on the alertness of people working in sensitive industries like trucking and mining. Employees at an electric power company in China have reportedly been sent home or removed from critical posts if a warning is issued based on neural sensors in their hat.

Many neurotech companies call California home, including brain-implant makers Neuralink and Science Corporation and augmented reality startup Cognixion. California-based tech giant Meta is exploring ways to integrate brain data into its smart glasses.

California lawmakers are looking to regulate the nascent sector before societal harms become commonplace as they did with AI and threats to digital privacy. Other states are also regulating neurotech: Colorado, Connecticut, Montana and Vermont already protect brain data to some extent. And this year Alabama, Illinois, New York, Vermont and Virginia are considering bills to regulate, or further regulate, the use of brain data. A United Nations body introduced the first global standards for how to treat neural data last year, and in February, Canada moved to protect the brain data of its citizens.

In California, Assemblymember Isaac Bryan, a Democrat from Inglewood, is pushing Assembly Bill 1883, which seeks to regulate the use of what’s known as bossware in the workplace and prohibits the collection of brain data by employers unless that data is used for safety. Another bill would expand state privacy law to prohibit the sale of sensitive personal information, which includes neural data.

Assemblymember Isaac Bryan on the Assembly floor at the state Capitol on March 27, 2023. Photo by Miguel Gutierrez Jr., CalMatters

Bryan said his bill is about ensuring that surveillance technology does not make the workplace hostile to people who are just trying to make a living.

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