The concept of Neurolaw is understood as freedom and privacy for the human exercise of their neural activity, which should not be invaded under any circumstances and at any extreme by external agents that could alter this intimate space. Highlighting a direct link with the concept of the sphere of privacy and human intimacy, giving at the same time a clear notion and approach to what seems to be a Human Right.
Based on the foregoing, the question arises in reference to the invasiveness of this neural space, that is, to the human mind itself, an issue that seems to point more to an approach towards science fiction than to a real affectation, since it is understandable that human thought and the brain are the last really private and intimate spaces in the existential sphere of the individual.
Now, when performing an analysis of the almost exponential proliferation of investigative biometric technologies, which focus on the collection of biometric data from people, the concept of the possible invasiveness of the human neural space no longer seems to be a ridiculous subject but a very real possibility, where the observation of certain neural responses to specific stimuli is valid.
These data have an extremely precise certainty, since their collection is based on the use of technological tools and not on the application of direct response instruments.
At this point it is necessary to point out that this type of commercial research biometric technologies do not refer to biomedical technologies, which although they share some characteristics, clearly the latter are used for purposes applicable to the Health Sciences, while the former are used, precisely, in order to extract consumer data regarding their brain or physiologiHealth SciencesTips for Contributing to Mental Health Care on a Daily Basiscal responses, in relation to certain situations and stimuli.
Commercial application tools
In these technologies of commercial application, tools such as the 1eyetracker stand out, which manages to capture visual fixations of people, facecoding, which recognizes micro facial expressions, the galvanic response, associated with the observance of physiological responses, such as body temperature, sweating, palpitations, among others.
In addition, encephalographs and brain heat maps can be specified, with even greater power in terms of the information collected, which essentially show the activations, activated brain areas and neural responses of a person at a given time, in reference to a stimulus consumption in particular.
It is interesting to point out that the quality of the information compiled by these technologies, if applied correctly, is almost free of bias, since obtaining it lies in the use of biometric techniques that do not require the conscious response of the person, but They extract the data directly from the individual’s bodily and neural activations, thus facilitating an epistemological heritage of great power for commercial decision-making in business matters.
It can clearly be seen that when applying this type of research, mention is made of branches such as Neuromarketing, Neuroeconomics or Neurofinance, among others, extremely valid applications and of great business contribution, since they allow business managers to have validated information from prior, and pertinent to the profile of behavior and purchase of its clients and consumers.
Additionally, this information is individualized, but at the same time generates possible general curves of commercial behavior of people, which works as an input for the creation of value marketing strategies.
Content of extreme sensitivity
Now, although the quality of the information and the effectiveness of this type of research and its generated data are not questioned, the truth of the matter is that we are dealing with a type of content of extreme sensitivity, defined as biometric data, which curiously, the Law for the Protection of the Person Against the Processing of their Data does not consider it as sensitive data, so, and in a very literal interpretation of the norm, it could be inferred that it does not have this particular protection.
Beyond just mentioning a concept of the treatment of the biometric, neural or corporal data of the consumer, a legal question of interest arises, which lies in the treatment of the sphere of the neural rights of the individual, which indicate that their private space of thought and linked to their own neurality, should not be invaded by third parties, nor by means of any type of tool that could violate their sphere of privacy and intimacy.
However, when studying the abusive application of some technologies, the person could be left in a defenseless state, especially due to the fact that they are working with the most essential of the human being, that is, their private space of neural activity.
For the purposes of the foregoing, both the aforementioned law, as well as the Biomedical Research Regulatory Law, refer to the mandatory use of informed consent in terms of obtaining, managing and storing sensitive data of the person, however, the concept of biometric data as such, is not defined under a sensitive category in the national legal system, to the point that its very definition does not find a niche in the positive and current regulations of the existing regulatory framework in the country, even leading to the suggestion the use of reasoned consent.
It is here where the subject of commercial biometric research and its link to Neurolaw take special relevance, especially when carrying out said analysis from a business perspective, because in essence, when defining a bilateral relationship between the company as a research entity and a manager of the biometric data of the person, and the person as the investigated subject, there is clearly what seems to be an imbalance in terms of the protection of the rights of the weakest party, represented by the individual, who in the best of cases, it only appears to be protected by informed consent if it has been used.
It can be indicated then that when applying a biometric commercial investigation, despite the fact that the existing regulations do not expressly indicate that this information is considered sensitive data, the most essential part of the person himself is managed, since it is being approached and obtained information related to their physiological body sphere, or even to their own neural space, aspects that undoubtedly have a connotation linked to the sensitivity of the information obtained, both in use, disclosure and storage.
Ethical and legal diligence
The dilemma here does not lie in the use of technologies, much less in their limitation of use, but rather in the ethical and legal diligence on which the commercial investigation must fall, being necessary for the research company the correct management of the data and the inherent respect for the neuroright of the person.
