Hastings Constitutional Law Quarterly


Wayne Unger


If technology could read your mind and capture your thoughts as storable and processable data, would that frighten you? Recent advancements in brain-computer interfaces will likely make mind-reading a reality, and if it does, it presents the last stand or final frontier in the battle for privacy protections. It is well established that an individual must be able to retreat into their home and be free from government intrusion. But if an individual cannot retreat into their own mind free from government intrusion, then true solitude will become extinct. In a future state where braincomputer interfaces can actively decode an individual’s ideas, thoughts, and beliefs—neurodata—what constitutional protections, if any, exist to preclude government intrusion and protect the freedom of thought?

This Essay analyzes Fourth Amendment jurisprudence as applied to neurodata. More specifically, it examines the Court’s current perspectives regarding highly sensitive and intimate data to neurodata, and in doing so, it utilizes Matthew Tokson’s emerging principles of Fourth Amendment privacy. I argue that neurodata unequivocally falls within the Fourth Amendment’s protections, and I provide a normative justification for extending the Fourth Amendment to this emerging technology and category of data.