EEG is Not Personal Data.

Today I am reviewing an article titled “I Tried These Brain-Tracking Headphones That Claim to Improve Focus” by Emily Mullen, because I am interested in BCI devices. The device in question is a pair of headphones made by the company Neurable, called the MW75 Neuro, which is designed to read EEG signals and improve focus.

Review

The article describes Neurable’s MW75 Neuro as an everyday brain-computer interface that aims to boost productivity (!). I think it is currently being tested and is available for preorder for $699.

(Oh—she also mentions that Apple has filed a patent for EEG sensors!)

The device uses EEG sensors to measure and detect what it calls “focusing periods”: high, medium, or low. You can earn points when you sustain focus for a while, and at the very least, you can become more mindful of when you are most attentive versus when you are distractible.

However, the headset does not strike me as particularly revolutionary. Like most EEG sensors, it lacks good contact with the skin and is susceptible to movement artifacts. The device also does not claim to be a medical device, thereby avoiding the need to undergo the rigorous testing protocols required for medical certification. Its function seems closer to that of a Fitbit tracker.

Sources for expert reference: W. Hong Yeo

Still, brainwave data is highly personal, and devices like Neurable’s raise questions about how user data is stored and protected.

This quote from the author is understandable but slightly misleading. It perpetuates the idea that brainwave data—at least in its current state—is anywhere close to identifiable. While it may seem very invasive (after all, it’s your mind), the amount of EEG data that can be recorded is massive, and without an equally impressive storage component, the raw data is unlikely to be retained in full. As the article later mentions, the device transforms the raw signal on the spot into a much smaller data stream: simply whether you are focused or not, and some additional details like how long you maintained focus and accumulated points.

It doesn’t tell you what you were focusing on—only that you were focused, at some points during the day. Something that everyone does. Furthermore, if you are already telling the device that you are planning to work (as is required by the app’s intended use case), then your transformed brain data isn’t revealing anything to the app that you weren’t already conveying explicitly—even without the EEG device.

In short: It can’t read your mind. The closest gadgets I’m aware of that can (to any meaningful degree) are all invasive and used in clinical applications. On the consumer level, EEG devices can only infer brain state based on the calculations they perform—not your thoughts.

The next part of the article references Jennifer Chandler, a professor of law at the University of Ottawa, who says that personal health data can be used in ways that aren’t obvious.

This is true. For any recording medium of any kind, this is true.

“If someone is continuously using a device like this, there’s going to be a stream of neurophysiological data that could be available for interpretation,” Chandler says. She points to a case in Ohio in which data from a man’s pacemaker was used to charge him with two felonies of aggravated arson and insurance fraud after a fire at his home in 2016.

Chandler can imagine a scenario in which someone is wearing EEG earbuds while driving a car and gets in an accident. If brain data from that device showed that the person wasn’t alert and focused, they could be at fault. While Chandler acknowledges the helpful insights a brain-reading device could provide—she wears a fitness tracker—she says consumers should consider how that data could potentially be used against them.

Regarding the pacemaker example: yes—a device that can reliably produce true and consistently accurate information can be used as evidence.

An EEG earbud, on the other hand, which isn’t consistently reliable, cannot prove beyond a shadow of a doubt that a crime was committed. Additionally, it would need to be specifically calibrated for the intended use case of driving. But what metric of neural data would be valid for determining the necessary amount of focus required to safely operate a car?

Now, if we had fully developed mind-reading devices that could accurately interpret every thought in your head—detecting when your attention drifts inward or focuses on something irrelevant—then there would be a stronger argument.

But alas, we aren’t there yet.