O direito à proteção dos dados neurais sob a ótica do dever de segurança ao consumidor: limites ao desenvolvimento das interfaces cérebro computador

Abstract

This research addresses the problem of consumer vulnerability in the face of emerging neurotechnologies. Among these, brain-computer interfaces, the object of massive investments by global industries, present the greatest challenges to maintaining the protective scope of law, operationalized in the protection of individual and collective human rights. Therefore, the focus was on a detailed understanding of their functioning, the threats they represent, and the social, political, and legal repercussions arising from their offering and use by consumers. It was found that, in Brazil, there is no specific regulation in force to limit their development, a scenario that contributes to the susceptibility to exploitation and violation of users' fundamental rights by neurotechnology providers. Given this, and aiming to construct a specific response to the gap identified in the Brazilian legal system, the work used a hypothetical-deductive approach, based on the constitutional duty of security as a major premise, in light of which the propositions indispensable to its testing were formulated. The work's structure was divided into three parts, the first being predominantly conceptual and descriptive, dedicated to understanding the topic from different conceptual and analytical perspectives across multiple sciences. It highlighted neural data, neurotechnologies, and brain-computer interfaces, as well as the risks and legal formulations discussed within the regulatory framework: neurorights and neurolaw. Throughout the research, the foreign and national context was analyzed within the context of the Americas, both North and South, a selection based on the two main currents addressing the protection of neural data. Having assimilated the fundamental epistemological assumptions for addressing the problem, the research sought to condense the theoretical and political contributions presented in the first sections, suggesting a reinterpretation of neural data protection from a new analysis of Law and the available hermeneutical tools. In conclusion, it was found that despite the divergences and lack of consensus on fundamental points, a response from the State and legal professionals to the dangers of brain-computer interfaces is necessary. This presupposes the unavoidable task of establishing limits to their creation, offering, and use, not according to rigid and fixed rules established by law, but through the formulation of anchoring paradigms established according to the various sciences involved in the user's relationship with neurotechnologies. To this end, understanding Law as a system proved elementary and fostered the core guidelines for maintaining its ultimate objectives, enabling the interdisciplinary articulation of important points from medicine, philosophy, sociology, law, and technology around concentric angles of legal radiation and protection, under a critical and constructive approach to the protection of neural data.