the complexity of the technology and potential for harm, the Australian consumer regulatory space would benefit from a tailored response to consumer neurotechnologies (as discussed further below). Human rights risks are likely to be amplified as neurotechnologies are adapted for broader consumer consumption without the necessary level of regulation in place. Neurotechnological intellectual property, which may be developed for medical application, can be pivoted and adapted to a consumer market. For example, while some neurotechnologies allow users who are paralysed to operate computers, it isn’t difficult to imagine this same technology being sold to gamers for hands‑free gaming. While the risks of products which are purely consumer‑oriented are troubling, attention must also be paid to medical products which will be adapted for consumer products. Large‑scale neurotechnological products will likely become commonplace in the not‑so‑distant future. For example, Neuralink received approval on 26 May 2023 from the US Food and Drugs Administration (FDA) to conduct its first tests on humans.226 Although Neuralink’s products are currently aimed primarily at assisting patients, it is possible this technology may also be pivoted to a consumer market in the future. For example, Elon Musk has posted about Neuralink’s ‘Telepathy’ product in which he wrote that ‘initial users will be those who have lost the use of their limbs’.227 The statement leaves open that later users may be general consumers. Irrespective of how the technology makes its way to consumers, neurotechnologies are becoming increasingly available for direct‑to‑consumer products for recreational or mental augmentation purposes.228 Without the rigorous safeguards in place for medical purposes, the effects of these consumer products remain unclear. 30 For example, non‑invasive neurotechnological products are rapidly proliferating outside of a targeted regulatory environment. One example is Apple’s recent patent for AirPods capable of monitoring brainwaves. Although non‑invasive neurotechnologies will often be used for similar purposes as invasive BCIs, because they do not require medical implantation, they often fall outside of medical regulation in consumer settings.229 This is especially true for neurostimulation commercial devices using TMS or transcranial direct current stimulation, for which the effects are not fully understood – and may cause adverse consequences for users.230 One risk to consumers is where neurological products overpromise on their capability to improve health and wellbeing, which can lead to negative outcomes for the individual. Further, the risks and obstacles of products must not be underestimated, or this too will lead to adverse outcomes.231 Equally, neural data collected by consumer products could be monetised and exploited by companies, employers or governments. The combination of neural data and other personal information collected online (from web browsing, smart phones, smart watches etc) might allow certain brain characteristics to be identified – such as attention or vigilance.232 This may lead to ‘neurotype’ profiles being created about users to allow for ‘neuromarketing’ or other exploitative tailored digital targeting.233 While the use of such information for marketing alone could be problematic, if taken a step further it quickly becomes disturbing. Protecting Cognition: Background Paper on Human Rights and Neurotechnology