Rapid advances in neurotechnology, such as brain-computer interfaces, neuroimaging, and Artificial Intelligence-powered thought analysis systems, offer new opportunities to understand and influence the human brain. While these technologies are promising, they raise serious questions about the preservation of individual freedom, privacy, and mental security, because traditional legal regulations often cannot deal with technologies that are capable of accessing or influencing thoughts.

The concept of “neurorights” offers a theoretical answer to this problem. These rights, which are based on bioethical and cognitive science phenomena, aim to protect individuals from unauthorized access, manipulation, or other interference with their mental processes. According to this concept, the mind is a protected space, like the body or the home, to which the legal system must relate in a special way.

Constitutional law, which protects fundamental rights, must also answer the question of whether it should recognize these new types of rights. If so, it must also determine how. This article argues that neurorights deserve special constitutional attention, especially in countries that place a greater emphasis on specific constitutional protections for human dignity, freedom of thought, and self-determination. The following sections aim to present the content of neurorights and raise questions in the reader’s mind about whether existing legal protections are sufficient. Furthermore, the article answers the question of how these new rights could be incorporated into the constitutional system.

Neurorights are a set of fundamental legal proposals aimed at protecting the human mind from external influence, manipulation, or exploitation. With the advancement of technology, it is becoming increasingly possible for outsiders to access and interpret data from the nervous system. This raises a number of ethical and legal questions. Although these rights have not yet been universally codified, they have recently become the subject of increasing scientific and political debate. While this phenomenon may seem very distant from the everyday problems of average citizens, it is important that debates are not overwhelmed by a regulatory system full of legal loopholes.

According to Ienca (2021), we can distinguish four fundamental neurorights. The first is the right to mental privacy, which ensures that our thoughts, intentions, and brain data are not accessible to others unless we ourselves allow it. The second is cognitive freedom, which means that we are free to decide whether to use or reject neurotechnology and cannot be forced to make decisions. The third is mental integrity, which provides protection against unauthorized interference with our consciousness. The fourth is psychological continuity, which protects the temporal consistency of personality and self-identity.

The term ” neurorights ” was first used by Ienca and Andorno in 2017 in their landmark study. Ienca (a biomedical ethicist at ETH Zurich) and Andorno (a legal scholar at the University of Zurich) argued that current human rights regulations are unable to adequately address the new moral and legal challenges posed by neurotechnology. Their analysis focused on human dignity and freedom of thought, emphasizing that legal innovation in this area is inevitable. Recently, Ligthart (a legal researcher at Radboud University Nijmegen) and his team helped to clarify the conceptual boundaries of these rights and examined how they could be incorporated into national constitutions or international human rights legal systems. The researchers suggest that these rights should not be treated as an entirely new category of rights, but rather as an extension of existing human rights protections that take into account the dangers posed by new technologies.

Existing legal instruments are ill-equipped to deal with the challenges posed by modern neurotechnologies. The traditional interpretation of privacy is generally limited to the protection of personal data, physical integrity, or private spaces. However, neural data from the brain can, by its very nature, blur the boundaries between thoughts, biological functioning, and digital information.

In U.S. constitutional law, privacy has been conceptualized through “zones of privacy,” first articulated in Griswold v. Connecticut (1965), which derived intimate spheres such as the marital home from the Bill of Rights’ penumbras. This reasoning paved the way for Katz v. United States (1967), where the Supreme Court formulated the doctrine of a “reasonable expectation of privacy,” protecting even a phone booth conversation against warrantless electronic surveillance. The Katz test–combining subjective expectation with societal recognition of reasonableness–has since shaped the Court’s digital-era jurisprudence. In Riley v. California (2014), the Court unanimously required warrants for searches of cellphones, given the unprecedented amount of personal data they contain, while in Carpenter v. United States (2018), it extended this logic to historical cell-site location information, acknowledging that prolonged digital tracking intrudes upon the “privacies of life.” These developments show how constitutional protection gradually expanded from tangible spaces to digital records, pointing today toward the human mind as the ultimate frontier of privacy.

Complementing the constitutional strand, U.S. tort law recognizes intrusion upon seclusion as a distinct wrong. As codified in the Restatement (Second) of Torts §652B, liability arises where one intentionally intrudes– physically or otherwise– into another’s private affairs, if highly offensive to a reasonable person. Unlike trespass, intrusion may occur without physical entry, encompassing wiretapping, secret surveillance, or covert access to private data. This private-law frame conceptualizes privacy as a protected “zone of seclusion,” offering an analytic bridge from spatial to informational– and potentially cognitive– domains.

The main problem is that current legal models based on data and physical privacy do not take into account the possibility that brain data can be extracted without physical intervention, and this data is highly sensitive and can reveal a great deal about a person’s mental state, intentions, or personality. This means that even a person’s thoughts can be revealed or manipulated without any obvious violation of the law.

Furthermore, traditional data protection, or consent-based legal approaches, do not provide sufficient protection against new types of threats, for example, when someone’s thoughts are interfered with, when algorithms are used to create a mental profile of them, or when they are subjected to cognitive manipulation. Technologies that can predict behavior or recognize emotional states raise serious questions about how free a person’s decisions, are or how authentic their thought processes are.

Although data protection regulations– such as the European Union’s General Data Protection Regulation (GDPR)– provide strong protection for the processing of personal data, they were not created with neurotechnologies in mind. Although neural data may in principle be considered “sensitive data” protected by the GDPR, the regulation does not provide specific protection against the commodification of mental autonomy, self-determination over thoughts, or brain activity. These shortcomings suggest that existing legal tools, while valuable, are insufficient to fully protect individuals in light of rapidly developing neural interfaces and data analysis tools.

Although neurorights are still far from constitutional recognition, several national and international developments offer insight into how legal systems might approach their regulation. Among the most notable examples is Chile’s constitutional reform effort, which aimed to make the country the first to explicitly incorporate neurorights into its constitutional framework. Although the draft constitution was ultimately rejected in a 2022 referendum¹⁸, Chile had already enacted an innovative Neuroprotection Law (Ley 21.383) in 2021, signaling its proactive stance on the regulation of neurotechnologies. This case illustrates a pioneering approach to constitutional innovation and raises the broader question of whether such proposals, even if unsuccessful in the short term, can serve as a model for future legal reforms in other jurisdictions.

International organizations have also begun to address the issue of neurorights through soft law instruments and ethical guidelines. The OECD’s 2019 recommendation on responsible innovation in neurotechnology emphasized the need to protect mental privacy, informed consent, and autonomy. Similarly, UNESCO’s 2021 recommendation on the ethics of Artificial Intelligence explicitly refers to neurorights as an area requiring attention in the future and urges member states to ensure that applications of Artificial Intelligence do not compromise cognitive freedom or mental integrity. The Council of Europe’s Bioethics Committee has begun discussing the impact of neurotechnologies on human rights and has recommended updating existing treaties, such as the Oviedo Convention.

In Europe, preliminary legal discourse has emerged in countries with strong constitutional traditions, such as Germany, Spain, and Switzerland. In Germany, scientists have examined how the existing right to human dignity and the general right to privacy (Allgemeines Persönlichkeitsrecht) can be interpreted to include protection against neurotechnological manipulation. In this context, the Federal Constitutional Court’s landmark 2008 ruling on covert online investigations is particularly relevant: it derived from the Allgemeines Persönlichkeitsrecht a distinct right to the confidentiality and integrity of information technology systems (Recht auf Gewährleistung der Vertraulichkeit und Integrität informationstechnischer Systeme). In Spain, academic debates have referred to Article 18 of the Constitution, which guarantees the protection of personal and family privacy, as a possible basis for the protection of mental privacy. In Switzerland, although constitutional doctrine does not specifically address the issue, legal scholars are calling for proactive legal innovation, anticipating the revolutionary potential of neurotechnology.

The incorporation of neurorights into the constitutional framework poses a number of significant challenges and counterarguments that must be carefully considered. First, there is concern about the excessive constitutionalization of technological issues. Critics argue that enshrining detailed rights related to neurotechnology in the constitution threatens to freeze rapidly evolving scientific fields and locks legal systems into outdated protection mechanisms that cannot keep pace with innovation.

Constitutional law traditionally sets forth general principles rather than trying to reflect on very specific technical rules, and an overly detailed approach could undermine this key role.Second, it is questionable whether neurotechnological threats really justify the introduction of separate neurorights as third-generation rights. Some analysts argue that existing fundamental rights, such as the right to privacy or self-determination, can be flexibly applied to address these challenges without the need for new, separate constitutional categories. As already mentioned, several legal scholars envision constitutional development through the adaptation of existing norms rather than the creation of new legal structures. This line of reasoning resonates with the American doctrine of a “reasonable expectation of privacy,” established in Katz v. United States (1967), which has since been adapted to cover new digital contexts, as well as with the European Court of Human Rights’ dynamic interpretation of Article 8 ECHR. The Court has repeatedly emphasized that “private life” is not a static concept, but one capable of extending to novel technological threats, as seen, for example, in Peck v. United Kingdom (2003) and S. and Marper v. United Kingdom (2008). This parallel highlights an important point for the present debate: if existing constitutional rights have already proven sufficiently flexible to address unforeseen technological challenges in both U.S. and European jurisprudence, then a similar interpretive path could be taken to respond to the risks posed by neurotechnology, without necessarily creating entirely new rights.

In addition, there is a risk of political instrumentalization. The constitutionalization of new rights– especially in pioneering areas such as neurorights–can be exploited for political purposes, which can undermine their credibility and hinder a consensual approach. Excessively rapid or ill-considered constitutional amendments can polarize public discourse and, in the long term, weaken social acceptance of the protection of neurorights.

Despite these challenges, the rapid development of neurotechnology and the profound ethical, social, and legal questions it raises reinforce the need to respond to them at the constitutional level. The solution probably lies not in a single approach, but in a multipolar strategy that combines the modernization of the interpretation of existing rights, targeted constitutional amendments, and the development of flexible regulatory frameworks that can adapt to future technological developments. Thus, the constitutionalization of neurorights is both a normative and a political challenge that requires the participation of legislators, courts, scientists, and society at large.

The potential impact on innovation is a matter of debate. The key question, however, is whether we are concerned with the impact of innovation–that is, the disruptive effects of neurotechnologies themselves–or the impact on innovation, namely the extent to which legal regulation might constrain or delay technological progress. Neurorights can be understood as a direct product of innovation and of “creative destruction” in the Schumpeterian sense. In contrast, the regulatory impact on innovation may prove negligible, given the pace of technological development in this field. For instance, the case of Neuralink in the United States has already illustrated the regulatory, ethical, and societal challenges these technologies pose, from safety concerns to issues of informed consent. Some scientists warn that overly strict constitutional safeguards could create legal uncertainty or prevent the spread of otherwise useful technological applications. This could hamper the development of neurotechnology research and deter investors. The tension between protection and innovation calls for nuanced, balanced regulatory solutions that continue to encourage scientific progress while guaranteeing full respect for individual autonomy and human dignity.

Furthermore, practical application also poses a serious challenge. Constitutional recognition alone does not guarantee effective legal protection—additional legislative and judicial mechanisms are needed for this. Monitoring compliance, identifying violations, and providing legal remedies in cases of neural data abuse or cognitive manipulation is a complex task that requires interdisciplinary cooperation between lawyers, scientists, technology experts, and ethicists.

Finally, the global diversity of constitutional traditions and political cultures also complicates the uniform adoption of neurorights. While Chile, for example, has pioneered the explicit constitutional protection of such rights, other countries have shown resistance due to differing social priorities or skepticism about the need for new rights (Ienca, Nature 2017). This uneven international picture highlights the importance of cross-border dialogue and cooperation in promoting harmonization and mutual understanding.

Overall, the rapid and inevitable advancement of neurotechnology offers extraordinary opportunities, but also poses unprecedented risks to individual rights and freedoms. Constitutional law must proactively adapt to this changing reality and recognize neurorights as an integral and indispensable extension of existing constitutional protections of dignity, autonomy, and privacy. Failure to do so risks leaving individuals vulnerable to new types of mental interference, manipulation, and exploitation – phenomena to which traditional legal frameworks cannot provide adequate responses.

In addition, it is important to strike a balance between legal protection and the promotion of innovation, and to avoid unintended consequences such as overregulation or the strengthening of surveillance practices. This requires interdisciplinary cooperation between legal scholars, neuroscientists, policymakers, and civil society actors in order to develop sophisticated, flexible, and effectively enforceable regulatory frameworks³¹.

Finally, as neurotechnologies become increasingly integrated into everyday life, it is crucial that the law be able to keep pace with scientific and ethical developments. This paper calls for increased commitment from the scientific, judicial, and legislative spheres to ensure neurorights as an essential and indispensable element of fundamental rights protection in the 21^st century.

Borbála Illés is a third-year law student at Széchenyi István University in Győr, Hungary, and a member of the Law School at Mathias Corvinus Collegium (MCC). Her research interests primarily focus on international public law, the rule of law, and the protection of fundamental rights during a special legal regime. She works at the Deutsch-Ungarisches Jugendwerk e.V. and previously participated in a volunteer project there supported by the European Solidarity Corps, reflecting her strong commitment to strengthening Hungarian–German relations.