D7.4: Implications of profiling practices on democracy

Title: IDENTITY, THE HUMAN PERSON AND THE LEGAL PERSON

As discussed above, we consider that the vagueness and ambiguity of the concept of privacy can best be understood by relating privacy to the ongoing process of identity construction. Ipse-identity - the sense of self - of a human person is essentially indeterminate; the process of identity-building takes place during the continuous interaction with a changing environment that demands continuous (small and larger) shifts in self-perception, to cope with new challenges. The indeterminacy thus saves us from rigid frames of mind, even if these may seem more comfortable and we may be tempted to prefer them (this would be to our own cost). Identity building, thus understood, is a mix of positive and negative freedom: to reorientate our self-perception, to reassess our sense of self, we need both the active involvement with our social and other environments (exercising our positive freedom) and space to withdraw, to ignore the demands from outside, to rebuild the constraints or habits that enable us to deal with outside demands in our own way (exercising our negative freedom). Constant undesired intrusion could make us feel helpless and out of control, no longer able to decide who we are and/or want to be. However, as we have seen, profiling technologies may be particularly unobtrusive: we may not be aware of the knowledge (automatically generated profiles) that is constructed on the basis of our data, and we may not be aware of the impact this knowledge has on the risks and opportunities that are created for us by third parties that build on those profiles. The point here is not just whether profiles are abused and the impact is not limited to possibly unfair discrimination. The point is that an abundance of correlatable data and the availability at reasonably low cost of techniques and technologies to construct personalised knowledge on the basis of these data create new possibilities for manipulation and may lead to major shifts in power-relations between individual citizens on the one hand and commercial or governmental organisations on the other. The point is not just abuse, but my capacity to realise whether and when profiles are used or abused. If ipse-identity is built and constantly reconstructed according to mycontacts with and experience of the ‘outside world’, then it seems self-evident that, from an individual’s perspective, the essential thing is: which parts of the outside world does the individual come into contact with?  Profiling may indeed lead to me being presented with certain pre-chosen aspects of that world in the form of a limited range of options Both price discrimination (extra discounts for some on the basis of their inferred preferences) in the supermarket and, for instance, differentiation in political campaigning will affect my self-identity and my ability to plan my own life.

It may be, that all this poses a greater threat to the mix of positive and negative freedom than outright, visible intrusion. As we do not know which opinions or preferences are inferred from our behaviour, both types of freedom may be impaired by constraints we are not aware of. Monitoring people and offering them customised services may ‘impose’ constraints that work – as it were – ‘under the skin’, catching us unaware, fulfilling dreams before we knew we had them (and, did we really – or did we seemingly fit a group profile that is non-distributive and does not apply to us as an individual?). 

It is not very difficult to see why this could create a type of human agency that is at odds with democracy and the rule of law as we conceive it today. This means, on the one hand, that we may have to reconceptualise and reconstruct constitutional democracy and, on the other hand, that we may want to find ways to protect human agency as we now know it. Privacy empowers the human person of flesh and bones to rebuild its identity, by protecting its indeterminacy; privacy rights, liberties and legal obligations empower the legal person with the legal tools to indeed seek such protection when it is violated. Below  I shall  discuss one of these tools – data protection legislation – in more detail, as this is often presented as the panacea for informational privacy protection.