Title: REPLY JAMES BACKHOUSE (LSE):

Reply James Backhouse (LSE):

It becomes ever clearer with the passing of time that the kind of society in which we in the developed world live today requires for its very existence a considerable access to all kinds of personal information. The relatively closed societies in which most individuals strayed no further than their nearest village and where physical, face-to-face relationships characterised most interactions have given way to globalised interactions of people who rarely meet in person to transact business or socialise, hence the role of data and databases in administering such systems is bound to take on a critical nature. Privacy was scarcely an issue when people lived their lives circumscribed by tight physical and social boundaries. With mainly informal control of village and municipal life, little data was held on individuals until the establishing of registers of births, deaths and marriages, and even this at the village church and not at a public registry. Even private addresses had little meaning until the establishing of national postal systems in many European states in the early part of the 19th century. The growth of public administrations and the increase in the role of the state changed all that. Greatly enhanced public record systems were necessitated by the expansion in responsibilities for education, public health and other municipal services, leading to some of the first large databases of personal information, albeit on paper. It is no coincidence that the first writings on privacy date from the late 19th century, c.f. Warren and Brandeis, marking its arrival as an issue of general public concern.

These large record accumulations constitute a massive resource for those needing to understand better how to deliver services and develop administration and business.  

Profiling offers a way of identifying citizens for good reasons as well as bad.  In e-health the vision is of remote sensors feeding information on patients in their homes back to servers at hospitals which, once certain thresholds are crossed, trigger treatments that may also be controlled electronically. In e-learning, profiling might be used for remedial purposes to ensure that failing students are identified in real time to trigger special courses. In e-government a range of benefits might be made available once specific profile requirements are matched by an individual’s data – on health, infirmity, or age.

Today we are moving towards a world of e-government and e-health where the recording and processing of personal information in electronic form is the sine qua non of service delivery.  As we have seen from this and other FIDIS reports, a similar picture is emerging for e-commerce.  The problem is that systems with profiling technology at their heart present also a dark side.  A number of questions arise, and these have been highlighted in this present report:

Rights of citizens, of e-democracy - Will those who are being profiled be aware of, and more importantly able to influence, the deus ex machina that will be ranging over so much of their lives?  

Justice and fair treatment - How will they know when their data traces, or an inappropriately constructed profile, have failed to render them eligible for some benefit or possibly condemned them to an administrative sanction? What recourse will there be in case of adverse administrative decisions reached on the basis of profiled data?  

Security and confidentiality - Will the personal data that these systems record, process and transmit, be accessible only to bona fide, authorised persons, or will corruption or incompetence open Pandora’s box to the wide world?

As with all technology there is a positive side, of the benefits and efficiencies that the adoption can bring. Only dyed-in-the-wool Luddites would claim that the data-driven systems in which profiling is used can bring no good at all. Many benefits will accrue from incorporation of profiling. These are being played up by the technology providers for obvious reasons and also by technocratic states. But the negative side is about a further move towards the surveillance society. In the end the checks and balances that democratic societies incorporate into their constitutions - “the law creates the competence or right to process information while at the same time limiting this right or competence” (p.15) - always leave room for special cases, such as for terrorism or law enforcement generally. As time goes by, there are ever more special cases that leave the citizen’s privacy in shreds. Recent discussion in the UK makes clear that, just for starters, Police, Inland Revenue, Customs & Excise, Security Services, Immigration Service and Dept for Work Pensions, will get access to the central identity data. Imagine the many profiles that will emanate from just these central governmental authorities.

This issue was recently discussed by Stefano Rodotà, former Privacy Commissioner for Italy, in a newspaper article, in which he asserts that e-government will always mean the collecting of citizen’s personal information and he asks how will such data be used?  Will it be deleted or be used to construct profiles of active citizens or lists of timewasters on whom to keep an eye? He holds that without certainty in these issues it will be hard to develop participation when citizens will be seeking to avoid these unwonted consequences.  Unless there is a rigorous respect for the rights of participants, e-government will not take off – “…non è possibile separare la questione dell’e-government da quella dell’e-democracy”. In practice, policymakers will have to consider the two notions of e-government and e-democracy alongside each other.

In a sense the kind of information society that is emerging has ended the clear distinction between private and public life precisely because the conduct of both government and business relies firmly on the availability of considerable amounts of personal information.  Unless there is a form of social contract between the agents with power to profile and the subjects of the data being profiled it is hard to see how liberal societies can proceed. Without such a contract the danger is that profiling will be seen as a restrictive and controlling technology and will have only negative associations, acquiring in Europe the pejorative connotation already widespread in North America. The beneficial aspects of profiling will be lost in a sea of rancorous debate and contention.

James Backhouse 

(London School of Economics)