We introduce the notion of ‘mental data’, defined as any data that can be organized and processed to make inferences about the mental states of a person, including their cognitive, affective and conative states. Further, we analyze existing legal protections for mental data by considering the lawfulness of their processing in light of different legal bases and purposes, with special focus on the EU General Data Protection Regulation (GDPR). We argue that the GDPR is an adequate tool to mitigate risks related to mental data processing. However, we recommend that interpreters focus on processing characteristics, rather than merely on the category of data at issue. Finally, we call for a ‘Mental Data Protection Impact Assessment’, a specific data protection impact assessment designed to better assess and mitigate the risks to fundamental rights and freedoms associated with the processing of mental data.
Executive attention refers to the ability to control what sensory stimuli one attends to and how one regulates responses to those stimuli, especially in cases of conflict. Episodic memory refers to memory for personally experienced, autobiographical events. Prospective memory refers to the formation and implementation of future-intended actions, such as remembering what needs to be done later. Metacognition consists of control and monitoring processes that allow individuals to assess what information they have and what information they still need, and then if necessary to seek information. Self-control is a regulatory process whereby individuals forego more immediate or easier to obtain rewards for more delayed or harder to obtain rewards that are objectively more valuable. The behavioral complexity shown by nonhuman primates when given tests to assess these capacities indicates psychological continuities with human cognitive control capacities.
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