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D7.4: Implications of profiling practices on democracy

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 Privacy and Data Protection in a Democratic Constitutional State



The aim of this deliverable is an academic exercise in the field of legal philosophy and legal theory about the impact of profiling practices on the central tenets of constitutional democracy. One of these central tenets is taken to be the identity of the European citizen, which in this case must not be understood as ID (passports, biometrics or other identification technologies), but as the sense of self of the human person, the cornerstone of liberal democracy. This deliverable thus focuses on the impact of identification technologies, especially profiling, on the self-identity of citizens and the implications this may have for both democracy, human rights and the rule of law. The report builds on FIDIS deliverable 7.2 (descriptive analysis of profiling technologies, techniques and practices) and FIDIS deliverable 7.3 (first assessment of profiling technologies in the field of Ambient Intelligence). All three reports aim to prepare input for a multidisciplinary publication in a refereed journal or in the form of an edited book on the subject of profiling (FIDIS deliverable 7.5).

The first report written within workpackage 7 (FIDIS deliverable 7.2) was a cooperative effort of 11 FIDIS partners, attempting some integration of technological, mathematical and social perspectives in the main text, while allowing representatives of the different disciplines to address a more specialised audience in the appendix. It contained an interdisciplinary analysis, enhanced with illustrative examples from different fields. The second report (FIDIS deliverable 7.3) – building on the first – focused on Ambient Intelligence and worked with a much smaller set of partners, consisting mostly of computer scientists and lawyers. It contained a first testing of the ground of the relationship between AmI and profiling and a first overview of the relevant legal framework. Both reports are available at the public FIDIS internet portal This report builds on the analysis of FIDIS deliverable 7.2, which means that we will regularly refer to its contents instead of repeating the analysis here.  

In chapter 2 and 3 of this report (both authored by researchers of LSTS-VUB) an extensive study is presented on the relationship between constitutional democracy, privacy and data protection (mainly in chapter 2), with a first exploration of the implications of profiling practices on the identity of the European citizen and the consequences this entails for democracy and rule of law (mainly in chapter 3). While privacy is certainly not the only good affected by profiling, the essay focuses to a certain extent on privacy and aims to explain why privacy is not only a private but also a public good, closely connected with the freedom to participate in democratic procedures and the freedom from interference in the establishment of one’s identity. These two chapters are not written in one voice, but present slightly different perspectives on the issues, intending to provoke further discussion. In this way it is hoped that some pertinent fundamental questions are raised and discussed that may be overlooked in more practical policy-oriented research.

The deliverable in fact involves a kind of experiment in asking the legal philosophers to take the risk of presenting their insights for an audience that is not familiar with the canonical styles of the argument in this field, after which four respondents from within the FIDIS network have been invited to write a brief reply from their own perspective and context. These replies have been included in chapters 4, 5, 6 and 7 (authored by LSE, ICPP, ICCS and TILT). Each of the replies offers interesting – partly new – perspectives even if they have not all led to an exchange of opinion at the theoretical level of the main texts. The replies clearly indicate the need for further debate.  

The internal reviewers of this report delivered excellent comments, pinpointing complexities and controversies, highlighting inconsistencies and making constructive suggestions to improve the accessibility of the text for a non-specialist public. One of the reviewers actually offered to write an extra reply to add his own informed opinion (evidently welcomed as the fourth reply in chapter 7). The conclusions provide an executive summary of the argumentations presented. 


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