The Electrode and the Feed: Why the Law Is Guarding the Wrong Door

A research position. Sourced, present-all-sides, and careful to separate the law that exists from the law that is merely wished for. that exists from the law that is merely wished for — because in this area the wishing badly outruns the enacting. Public-facing research (evilrobots.lol); constructive companion to the cognition material in the books.

If artificial intelligence is capturing human cognition — and the case that it is lives elsewhere in this research — then the obvious next question is whether anyone is doing anything about it. The encouraging answer is yes: there is a real, serious, decade-old movement to protect the mind, with constitutional amendments and supreme court rulings and a UNESCO framework to show for it. The discouraging answer is that almost all of it is aimed at a threat most people will never face, while the threat in everyone’s pocket walks past unregulated. The law has built a very good lock. It has put it on the wrong door.

The good news, which is real

Chile went first, and went hard. In 2021 it amended its constitution to protect “brain activity and the information derived from it” — the first country to write neuro-protection into its founding document (JURIST; UNESCO Courier). Two years later its Supreme Court gave the clause teeth: in a case a former senator brought against the maker of a consumer EEG headset, the court found his rights violated, ordered the company to delete his brain data, and barred the device from sale until it fixed its privacy policy. That is the first time anywhere a court enforced the idea that the signal coming off your skull is yours. It is a genuine landmark (Frontiers in Psychology, analysis of the Girardi v. Emotiv ruling; PMC mirror).

The United States followed in the narrow, lawyerly way it follows everything: Colorado amended its privacy act in 2024 to treat neural data as sensitive and require opt-in consent (Hunton, on HB 24-1058); California did a weaker opt-out version a few months later (Morrison Foerster, on SB 1223); more states are in the queue (Arnold & Porter survey, Jul 2025). UNESCO adopted the first global ethics framework for neurotechnology in November 2025 (UNESCO). And underneath the law sits a serious intellectual project — the neuroscientist Rafael Yuste and the lawyers around him proposing a slate of new “neurorights” (mental privacy, identity, free will, fair access, freedom from bias) (Neurorights Foundation), built on a foundational 2017 paper that argued existing human rights might simply be insufficient for the neurotech age (Ienca & Andorno, Life Sciences, Society and Policy, 2017, open access).

All real. All aimed at the electrode.

The door it’s guarding

Read the fine print on every one of those instruments and the same boundary appears: they protect neural data from a device — the signal a headset or an implant or a brain-computer interface reads off your nervous system. Colorado and California regulate the data the cap on your head transmits (Hunton, HB 24-1058; Morrison Foerster, SB 1223). They do not touch the inference of your mental states from your behavior — the clicks, the scroll velocity, the dwell time, the questions you ask at midnight — which is the exact mechanism by which a recommender or a chatbot reads you without ever touching your scalp. The state laws carved that out, explicitly. The spectacular threat — the machine that reads your dreams off an electrode — got the fast constitutional clause. The boring threat — the machine that quietly shapes what you think by deciding what you see — was left in the blind spot, because it is harder to dramatize and because the companies that run it are larger than the companies that make headsets.

This is the whole position, so let it sit plainly: the feed needs no electrode. The capture this research documents comes through the phone, through behavioral inference, through the ambient mediation nobody signed a neural-data consent form for. And it is the layer the entire enacted edifice does not reach.

The fault line worth watching

The movement is not monolithic, and the disagreement inside it is the most useful thing in it. On one side, Yuste and the new-rights camp: mint fresh neurorights, get them into constitutions, treat the brain as a special case deserving special protection. On the other, the legal scholar Nita Farahany, whose The Battle for Your Brain makes the sharper argument: we do not need five glamorous new rights, we need to update the ones we have (Nita Farahany, The Battle for Your Brain). Her organizing concept is cognitive liberty — mental privacy, self-determination, freedom of thought — and she calls it “the only required neuroright,” largely latent already in existing privacy and freedom-of-thought law (Farahany, TIME). And the barrister Susie Alegre, in Freedom to Think (Atlantic Books), points at the instrument that actually reaches the feed: freedom of thought itself — a near-absolute right under the old human-rights conventions (UDHR Article 18, 1948), written for inquisitors and secret police, which on its face would reach what an engagement-maximizing recommender does — shape what you see, at scale and below the level you notice — if a court accepted the argument, which none yet has. That right exists. It is decades old. It has barely been pointed at the technology, and pointing it there is the one legal move with the reach to matter.

The fault line, then: the camp getting the headlines and the constitutions (new neurorights, aimed at the electrode) versus the camp with the unfashionable existing instrument (freedom of thought, which could bite the feed). The first is winning the press. The second is the one this problem needs.

The honest skeptic, who is also right

And because this is a research position and not a brochure, the strongest critic gets his say, because he is largely correct. The legal scholar Jan Christoph Bublitz argues the rush to mint new “brain rights” is rights inflationism dressed up as neuro-exceptionalism — treating the skull as magically special when the actual harms (surveillance, manipulation, the erosion of autonomy) are general and already named in the law we have (Bublitz, “Novel Neurorights: From Nonsense to Substance,” Neuroethics 2022; PubMed). He has called the Chilean reforms “vague and premature,” passed fast and ahead of the consumer harm they were meant to address. He is pointing at the same gap from the other side: a constitutional clause about brain data, enacted before brain-reading devices are remotely widespread, is the legal equivalent of a “we take your privacy seriously” banner — a feel-good instrument aimed at the photogenic threat while the boring, actual one is unregulated. The honest program has to bite the boring threat or it is theater.

The other arm: the conservatory, not the courthouse

There is a second response that does not wait for the law, and it is the one the books land on. Instead of legislating the mind’s protection, build and defend it directly. The researcher Andy Matuschak left to make what he calls “a conservatory for human attention” — the word conservatory exact: a place you deliberately cultivate a capacity the surrounding world has stopped cultivating on its own (Matuschak). Cal Newport supplies the personal-discipline vocabulary (deep work, digital minimalism, attention as the scarce capital) (Cal Newport, overview). There are even small schools now teaching, without irony, how to pay attention (Strother School of Radical Attention).

The easy sneer is that this privatizes a structural problem — that “go cultivate your attention” is touch grass with a reading list, and that no amount of personal stillness repeals an apparatus. The sneer is half right: it is privatized, the problem is structural, and the conservatory is not a policy. But it is not offered as one. It is offered as a survival — the thing you do for your own one mind while the structural fight, which is real and slow and necessary, goes on without giving you the option to wait for it.

The position

The law that exists guards the electrode. The threat that’s here comes through the feed. The instrument that could close the gap — freedom of thought, the old near-absolute right against manipulation of the mind — already exists and is sitting unused while the movement chases shinier new rights aimed at hardware most people will never wear.

So the constructive program writes itself, and almost no one is doing it: stop minting new brain-rights for the spectacular threat, point the freedom-of-thought law we already have at the recommender and the chatbot, treat inferred mental states as the sensitive data they obviously are, and pair all of it with the bottom-up practice of conserving attention by hand, because the law will arrive late if it arrives at all. The neurorights movement is guarding the door to a room almost no one is in. The room everyone lives in — the feed — has no lock, and the key was written into human-rights law in 1948 (UDHR Article 18), and it is gathering dust because the threat it fits doesn’t photograph well.

Guard the right door.

Sourcing & honesty notes

• Enacted: Chile (2021 constitutional reform — JURIST, UNESCO Courier; Girardi v. Emotiv, 2023 — Frontiers in Psychology, PMC); Colorado HB 24-1058 (opt-in, in force Aug 2024 — Hunton, KFF Health News); California SB 1223 (opt-out, in force Jan 2025 — Morrison Foerster); UNESCO Recommendation on the Ethics of Neurotechnology (adopted Nov 12 2025 — non-binding soft law — UNESCO, instrument page).
• Proposed / foundational: Yuste/Morningside five neurorights (Neurorights Foundation); Ienca & Andorno (2017, the field’s origin paper — Life Sciences, Society and Policy, open access); Council of Europe assessment phase (no treaty yet — CoE biomedicine).
• Framing thinkers: Farahany, The Battle for Your Brain (cognitive liberty; update existing rights — book, TIME); Alegre, Freedom to Think (freedom of thought reaches the feed — Atlantic Books); Boire & Sententia / CCLE (1999, coined “cognitive liberty” — Boire, “On Cognitive Liberty”).
• Skeptic: Bublitz, “Novel Neurorights: From Nonsense to Substance” (Neuroethics 2022) — rights inflationism / neuroexceptionalism / “vague and premature” (PhilPapers, PubMed).
• Practice arm: Matuschak (Pico — only the one-line “conservatory for human attention” is firmly verified — andymatuschak.org); Newport (deep work / digital minimalism — overview); Strother School of Radical Attention (schoolofattention.org).
• Foundational right: freedom of thought, conscience and religion — UDHR Article 18 (1948).
• Key limit to keep attached: every enacted instrument regulates device-sourced neural data, not behavioral inference — the gap is the argument.