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Stay Out of My Head: Neurodata, Privacy, and the First Amendment


Wayne Unger


December 29, 2023

The once science-fictional idea of mind-reading is within reach as advancements in brain-computer interfaces, coupled with advanced artificial intelligence, produce neurodata—the collection of substantive thoughts as storable and processable data. But government access to individuals’ neurodata threatens personal autonomy and the right to privacy. While the Fourth Amendment is traditionally considered the source of privacy protections against government intrusion, the First Amendment provides more robust protections with respect to whether governments can access one’s substantive ideas, thoughts, and beliefs. However, many theorists assert that the concept of privacy conflicts with the First Amendment because privacy restricts the flow of information while, on the other hand, the First Amendment is meant to promote the free flow of information. As technology advances and new categories of data are created and stored—like neurodata—it becomes more evident that the First Amendment actually promotes privacy by precluding government intrusion upon the freedom of thought and the right to a free mind.

This Article argues that the First Amendment serves as a more robust source of privacy protections than the Fourth Amendment, at least with respect to government intrusion into an individual’s neurodata, because such intrusion would violate the First Amendment’s right not to speak and the freedoms of thought and belief. As brain-computer interfaces become more prevalent, and produce more neurodata, the First Amendment’s well-established doctrines against compelled speech and its recognition of the freedom of thought ought to extend to prevent government access to an individual’s stored ideas, thoughts, and beliefs. In furtherance of this argument, this Article synthesizes First Amendment scholarship and proposes the Privacy Theory of the First Amendment to illustrate how the First Amendment broadly protects the privacy interests of individuals.


Wayne Unger, Stay Out of My Head: Neurodata, Privacy, and the First Amendment, 80 Wash. & Lee L. Rev. 1439 (2023).