D7.4: Implications of profiling practices on democracy

Title: COUNTER-PROFILING BY ‘WEAK’ PARTIES

Counter-profiling by ‘weak’ parties

We should also have an eye for counter-developments. The rule of law is at stake, I would argue, if significant changes in balances of power occur without adequate reason. (A changing conception of fairness, or a general acceptance of privacy as outdated, might be adequate reasons.) It is probably true that profiling enables those in power – businesses, governments, employers – to enhance their power, by making ever more precise decisions that benefit themselves rather than the consumer, individual citizen, or employee. As yet I do not think that this rise in power is very significant, but it may be something to keep an eye on, so that we can intervene as soon as the current power balance threatens to tip too much in favour of those in power. 

However, it should not be overlooked that, at the same time, consumers, citizens, and employees also gain power through data storage and correlatability. This is particularly visible in the context of commerce: consumers are no longer dependent on the bookstore or camera shop on the village square, but they can compare prices in an automated way and choose the cheapest offer or the best deal around in as large a region as they care to explore from out of their desk chair. What is more, businesses are being profiled by ad-hoc collections of consumers who together build and maintain websites with assessments of their quality, service level, and reliability. A hotel owner now must not only be friendly to Mr. Michelin or Miss Lonely Planet when they visit once a year, but to every customer with Internet access, lest he risks being allocated a bad profile.

In government-citizen and certainly in employer-employee relations, the empowerment of the traditionally weak party through technology is perhaps less clear. Nevertheless, the example of blogging is a case in point. Individual citizens can become famous bloggers, forcing local governments and government agencies to monitor how they are being talked about and ‘profiled’ on the web. Governments decisions, much more than was the case before the wide adoption of the Internet, risk public denouncement by individuals, with significant potential impact on their status and support. And I am sure other examples avail of empowerment that tugs at the power balance of governments and citizens by giving citizens an extra tool of transparency in practice. 

Do not mistake me in arguing that profiling by the powerful is thus counterbalanced through ‘profiling’ by the power-poor, so that in the end, the balance of power remains the same. That is precisely what I do not know and what I intend to research. My hypothesis is that technology causes shifts in existing balances of power in both directions, but that these shifts cannot exactly be measured against each other. The metaphor of a balance here falls short – it is not simply a matter of putting similar weights on both sides of a pair of scales. What the ultimate effect is on power relations remains to be studied.

However that may be, here I want to point out that it is too easy to just say that the rule of law is threatened by profiling or profile use by companies and governments. Counter-developments, such as forms of empowerment of individuals that give them tools of transparency they have never had before, must also be taken into account before we carry the rule of law to its grave. 

Bert-Jaap Koops 

(Tilburg Institute for Law, Technology, and Society)