Brain-monitoring technology is advancing quickly, and California lawmakers are racing to figure out how to keep it in check before it becomes a fixture of everyday work and life.
Devices that read brain activity — through implanted chips or sensors tucked into earbuds, headbands, wristbands and augmented reality headsets — are no longer confined to research labs. They already help blind people regain some vision, give paralyzed patients a way to speak, and let people with severe neurological conditions communicate and control computers without lifting a finger. But that same technology can also detect fatigue, stress and even patterns linked to mental health conditions, raising concerns about how employers, tech companies and insurers might one day use that information.
Few Californians currently use neurotechnology, and even fewer are aware it exists. Still, the state has moved faster than most to address it. Two years ago, lawmakers expanded California’s digital privacy law to cover brain data. This year, two more bills are working their way through Sacramento: one that would limit how employers can use so-called “bossware” tied to brain sensors, and another that would bar companies from selling neural data and other sensitive personal information. Separately, new rules from the California Privacy Protection Agency take effect in January, adding safeguards for people affected by automated systems that rely on artificial intelligence — including tools built around brain data — to make major decisions about their lives.
The concern isn’t really about today’s applications, most of which are used to catch fatigue in truck drivers or miners. It’s about where the technology could be headed. Brain signals can already be analyzed for signs of depression or PTSD, which critics warn could someday factor into hiring or firing decisions. Researchers have also shown that neural data can be used to reconstruct words or images a person is thinking about — a capability that unsettles labor advocates who fear it could give employers leverage in salary talks or make it easier to identify workers involved in union organizing.
In China, some employees at an electric utility have reportedly been sent home or pulled from sensitive assignments after monitoring hats flagged declining alertness. It’s the kind of scenario that has fueled what some now call the “mental privacy” movement — a push to establish protections before neurotech becomes as embedded in daily life as smartphones or social media.
California is home to several companies at the center of this emerging industry, including brain-implant makers Neuralink and Science Corporation, Santa Barbara-based augmented reality firm Cognixion, and tech giant Meta, which is exploring ways to weave brain-signal data into its smart glasses.
Assemblymember Isaac Bryan, a Los Angeles Democrat representing Inglewood, is behind Assembly Bill 1883, which would restrict “bossware” surveillance tools and prohibit employers from collecting brain data except for safety purposes. Another proposal, Assembly Bill 1542, would broaden the state’s privacy law to prevent companies from selling sensitive personal data, including neural information.
“Much of what’s in our bill is cutting-edge technology, or technology that’s emerging in real time, and we’re trying to get ahead of problems before they show up in the workplace,” Bryan said. “You’d rather not have horror stories.”
His bill has drawn pushback from a range of employers — cities, counties, grocers, hospitals, wine growers and assisted living operators among them — who argue the measure casts too wide a net and could interfere with legitimate safety and security tools, such as systems that monitor for unsafe driving, theft or misconduct toward customers.
The debate comes as neurotech moves closer to the mainstream. Meta’s Neural Band is beginning to link up with its smart glasses, and several startups are working to integrate their sensors with Apple’s Vision Pro headset. The FDA, meanwhile, has granted “breakthrough device” status to a number of neurotech firms, a designation that allows companies to market devices still undergoing clinical trials and speeds their path to market.
Nita Farahany, a Duke University law professor who studies mental privacy, said many neurotech companies are quietly deciding right now how they’ll make money — whether through subscriptions, premium hardware, or by monetizing customer brain data through cheaper devices. Without stronger protections, she said, workers may start censoring their own thoughts, avoiding even thinking about things like organizing a union for fear an employer might one day gain access to that information.
“We’re at a critical decision point for most of the neurotech companies,” Farahany said. “Privately, all of them are grappling with this right now.”
A 2024 study by Stephen Damianos of the Neurorights Foundation found that nearly every company making consumer-grade brain-computer interfaces has weak privacy protections built into its terms of service, and that two-thirds allow user data to be shared with third parties. Damianos warned that as devices and the algorithms interpreting brain signals improve, the risks will grow — from job discrimination to insurance penalties to unwanted monitoring at work.
“There’s an urgent need to act now before it becomes the norm that brain data is accessed without consent or used to influence decisions,” he said.
Some companies developing the technology insist they’re taking a responsible approach. Cognixion’s Santa Barbara-built headsets combine augmented reality with brain sensors, letting people with ALS and other neurological conditions use eye movement, head motion and brain signals to send emails or communicate through apps like Slack. Founder and CEO Andreas Forsland said technology built to help people with severe disabilities often ends up benefiting everyone, comparing it to how curb cutouts and automatic doors, designed for wheelchair users, made life easier for the public at large. He believes broader use of brain data is inevitable, whether to boost human performance or to give people new ways to interact with machines.
San Francisco-based Emotiv makes brain-sensing earbuds paired with software that interprets electrical brain activity to help users manage stress and fatigue throughout the day. The company says its technology has been tested by corporations including SAP, which used it to tailor employee training; Dell, which used it to adjust break schedules; and real estate firm JLL, which explored whether office layouts affect worker performance. Emotiv’s chief commercial officer, Kim Old, said those were pilot projects and stressed that the company believes brain data should only be collected with consent and under strict privacy standards.
“We do not believe neural data should be used for covert or coercive workplace surveillance,” Old said in an email.
Alexander Kies, a postdoctoral researcher at RWTH Aachen University in Germany who studies workplace reactions to neurotech, predicts that non-invasive brain monitoring will spread first as a fatigue-prevention tool before evolving into something used for broader management decisions. Once that shift happens, he said, it becomes harder to tell whether an employer is protecting workers’ well-being or simply tightening control.
“My take on this is these management tasks would creep in,” Kies said. “We’re taking away agency from employees.”
California’s push to regulate this space hasn’t been without setbacks. Last year, a broader bill addressing automated decision-making systems in the workplace, Senate Bill 7, was stripped of language covering neural data in order to gain enough votes to pass — and Gov. Gavin Newsom vetoed it anyway, saying it imposed overly broad restrictions on businesses.
State Sen. Jerry McNerney, a Stockton Democrat who co-authored that bill, said the challenge lawmakers face is crafting rules that protect workers without shutting the door on beneficial uses of the technology. He included brain data in the original bill, he said, because “that’s the most personal thing you have, your brain.”
“We want to make sure that neural data isn’t used to predict behavior that would cause you to punish an employee, so no predictive algorithms are allowed,” McNerney said during a panel discussion hosted by CalMatters last year at the James Irvine Foundation’s San Francisco offices.
Sara Flocks of the California Labor Federation, which supports the current regulatory push, said neural data monitoring risks repeating mistakes from the Industrial Revolution, when employers squeezed efficiency out of workers at the cost of basic conditions. She pointed to recent survey data showing that one in five managers now use automated tools to help make hiring, firing or promotion decisions, and that roughly three-quarters of employers use some form of workplace surveillance software.
Farahany acknowledged that brain data today reveals less about workers than other commonly collected information, such as keystrokes, social media habits or heart rate. But she expects that gap to close as sensors and AI interpretation improve. In her book, “The Battle for Your Brain,” she argues that any productivity gains from neurotechnology could be outweighed by an erosion of trust if employees feel their mental privacy is being compromised.
The stakes go beyond simple privacy violations, she said — they touch on a person’s fundamental freedom to think without being watched.
“There’s an urgent need to protect mental privacy and self-determination,” Farahany said. “It’s part of a bigger picture that needs to be addressed.”
Original source: CalMatters
