March 31, 2026

The Brain-Computer Interface Race Is On – Is the Law Ready?

Nardeen Billan, Gayland Hethcoat II, Abha Kundi ArentFox Schiff + Follow Contact LinkedIn Facebook X Send Embed

Forget science fiction — the race to wire computers directly into the human brain is well underway, and it is moving fast.

Neuralink grabbed the early headlines, but other innovators are entering the field of brain-computer interface (BCI) innovation. As this technology advances from laboratory to market, companies, investors, and institutions must navigate a dynamic landscape of opportunity and risk.

What Is a BCI?

A BCI is an implantable device that creates direct communication pathways between the brain and external electronics. A small implant placed surgically into the skull extends ultra-thin electrode threads into the brain’s cortex to detect and record neural activity; those signals are transmitted wirelessly to external devices, where software translates them into digital commands. The result is that a person can, in principle, control a computer, smartphone, or prosthetic limb using thought alone. For patients who have lost motor function due to spinal cord injury or disease, the clinical implications are potentially profound.

BCIs exist on a spectrum of neurotechnology that is emerging against a backdrop of growing interest in extending cognitive longevity — the preservation of mental function and neurological resilience as people age. At the non-invasive end, wearable neurostimulation devices are already reaching patients. Transcranial magnetic stimulation (TMS) platforms have been used clinically for treatment-resistant depression for years, and the US Food and Drug Administration (FDA) approved the first prescription at-home brain stimulation device — Flow Neuroscience’s FL-100 — in December 2025 for major depressive disorder. Electroencephalogram-based consumer headsets, closed-loop neurofeedback systems, and ultrasound-based neuromodulation platforms occupy the middle of the spectrum. BCIs sit at the other end of this continuum — the highest-resolution, most intensive tier of intervention — where the most consequential legal and regulatory questions arise.

Who Is in the Race?

Neuralink remains the most visible player. Founded in 2016, the company received FDA approval to begin human trials in 2023 and has enrolled 21 trial participants — or “ Neuralnauts ” — as of early 2026. Its flagship device, the “Link,” is a coin-sized implant paired with a precision surgical robot for implantation. The current clinical trial, known as PRIME, is studying the device in patients with quadriplegia due to cervical spinal cord injury or amyotrophic lateral sclerosis.

But the competitive landscape is expanding quickly.

• Samsung is reportedly developing its own BCI technology, signaling that major consumer electronics companies see a commercial future in neural interfaces.
• Chinese research teams have announced rapid progress on implantable brain-computer devices, raising the prospect of a US-China technology race with significant geopolitical dimensions.
• Neuralink alumni are launching well-funded startups, with Science Corporation securing $230 million from major venture capital firms in March. The pipeline of potential therapeutic applications is broad: paralysis, Parkinson’s disease, epilepsy, depression, dementia, and eventually the restoration of sight and hearing by bypassing damaged sensory organs entirely. Longer-term possibilities like cognitive enhancement and brain-to-brain communication remain speculative, but they are already shaping investment theses and ethical debates.

The Legal and Regulatory Picture

As is often the case with emerging technologies, the legal, regulatory, and ethical frameworks have not kept pace with the advancement of BCIs. The following areas warrant particularly close attention as this technology evolves.

Medical Device Regulation

BCIs are medical devices, full stop. That means preclinical studies, investigational device exemptions, and clinical trials before any commercial launch. Neuralink’s FDA approval for human trials was a significant milestone, but the path to market authorization is long and subject to ongoing agency scrutiny. As more companies, including foreign competitors, enter the space, questions about international regulatory harmonization and competitive approval timelines will intensify.

Data Privacy

Neural interfaces collect raw neural signals that could, in theory, reveal one’s thoughts, intentions, and emotional states. Recognizing the intimate nature of such data, some states, such as California and Colorado, have amended their consumer privacy laws to designate neural data as a specific category of sensitive personal data triggering heightened compliance obligations. As more neurotechnology innovations reach the market, other states are likely to move in a similar direction, and calls for a comprehensive federal privacy framework may amplify.

Liability

A malfunctioning implant — one that causes injury, produces unintended neurological effects, or fails to perform as indicated — raises knotty questions about responsibility among device manufacturers, surgeons, hospitals, and software providers. Similarly, BCI technology pushes the doctrine of informed consent to its limits: Patients considering permanent implants face risks that may not become apparent for years. Amid these uncertainties, robust insurance coverage and indemnification arrangements become essential tools for managing exposure across the chain of participants.

Ethics

The big-picture questions are piling up: equitable access to expensive neurotechnology, the potential for coercive use, and the societal implications of technologies that could stratify cognitive capability along economic or national lines. BCI makers should be prepared to face scrutiny about how they will ensure accessibility to BCIs across diverse populations and what safeguards will prevent misuse by third parties, including governments and employers.

Why This Matters — and Who Should Be Paying Attention

The issues emerging from the BCI race will touch multiple business functions across sectors.

• Investors and acquirers evaluating neurotechnology companies need to diligence regulatory pathways, clinical trial risk, and competitive dynamics in a field that now spans multiple continents.
• Health care institutions will face questions about adopting BCI-based treatments, credentialing surgeons for novel procedures, and managing liability across an expanding ecosystem of device makers and interconnected software providers.
• Insurers need to figure out whether and how to cover implantable neurotechnology and how to price risk for devices and procedures that lack long-term outcomes data.
• Employers may encounter accommodation requests and other employment considerations as the technology matures and is deployed by their workforces in workplace settings.
• Privacy and compliance teams should consider how neural data fits within existing privacy frameworks that apply to their organizations and monitor for legislative measures that provide additional protections specifically for neural data. The legal landscape is forming now, while the pace of commercial and scientific development accelerates. Companies that understand the terrain early will be better positioned to participate or to manage exposure as the rules take shape.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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