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D7.4: Implications of profiling practices on democracy

Hildebrandt, Gutwirth & De Hert: what is at stake?  Title:
 James Backhouse: a new social contract


The imbroglio of technology and its social context

The authors of the two main texts in chapter and (referred to as ‘main authors’ in these conclusions) start from the premise that scientific and technological developments are never inevitable, never neutral, never pre-determined. As sociology of sciences has shown, technological developments are always the result very complex networks of scientists, research leaders, companies, sponsors, politicians, investors, institutions, etc. In these networks choices and decisions are made and irreversible steps taken, redistributing the possibilities (virtualities) of the artefact’s future. Any ‘end product’ for an ‘end user’ has gone through a list of small and major decisions that have moulded the product and led to its final commercialisation. Hence, the development of information technology is the result of micro politics in action. They are also convinced that technologies are never limited to a single meaning and are always redefined by their users. A technological development never has only one pre-defined future. Products are used, abused and applied in myriad projects, continuously redefining their future. Technologies are thus closely linked to social organization, cultural values, institutions, social imagination, decisions and controversies, and, of course, also the other way round. Any denial of this hybrid nature of technology and society blocks the road toward a serious political, democratic, collective and legal assessment of technology. This position explains why the main authors simply had to undertake the exercise to think the development of profiling technologies in relation to the tenets of the democratic constitutional state. Not because they believe that ‘the law’ should rule ‘the technology’ or, inversely, that ‘the law’ should be ruled by the technology, but because they are deeply convinced that law and technology are interdependent and mutually constitutive, and that they both deserve to be thought together. Profiling technologies are not developed nor used in a vacuum: they impact on and are impacted by the democratic constitutional state, its concept of the individual, her identity and its driving principles, and vice versa.


Profiling as anticipation

Profiles are non-representational knowledge in the sense that they do not so much aim to represent a current state of affairs, but rather aim to predict future behaviours inferred from past actions. Profiles are patterns obtained from a probabilistic analysis of data; they do not describe reality. Based on its experience, an animal may associate a situation with danger as a result of the recognition of a certain pattern or profile and act consistently even if the situation, in reality, is not really a dangerous one (the human smell and the shuffling footsteps were not those of a hunter, but those of an animal rights observer). Hence profiling is as old as life, because it is a kind of knowledge that unconsciously or consciously supports the behaviour of living beings, humans not excluded. Taken to a more abstract level, profiling leads to the discovery of patterns, which can develop into a very useful and valuable probabilistic knowledge about non-humans, individuals and groups of humans.  


Exploration of what is often taken for granted: constitutional democracy

To reflect on the implications of profiling on democracy and rule of law in the preceding studies the main authors have taken the time to explore the historical framework of the democratic constitutional state. Instead of taking this term for granted and issuing bold statements about presumed adverse effects of profiling or the presumed incapacity of the law to accurately face questions spawned by profiling, they have carefully investigated the way we construct our identities and the role played by what we intuitively call privacy in the framework of constitutional democracy. Against this background, they addressed the issue of the impact of profiling on our contemporary ‘information society’ and the need for a partial reinvention of democracy, of the rule of law, of identity, of privacy and data protection that this impact may require.  

Chapters and do not claim that profiling in itself is good or bad, as some of the replies seem to suggest. Hildebrandt, Gutwirth & De Hert are no technophobes nor technutopists and they refuse both boom and doom scenario’s for our future society. As stated above, they believe that profiling and profiling technologies are not neutral, which implies that, like all techno-scientific artefacts, they should be analysed and weighed from the perspective of the essential tenets of our societies, or in other words, of what we care for as citizens of European democratic constitutional states and as legal scholars. This is what they have tried to do in chapters and .

Both Hildebrandt and Gutwirth & De Hert are trying to sensitise the reader to a qualitative shift in the processing of data, generated by quantitative changes in both the cost and the scope of data collection and processing. They are focussing on the fact that the huge increase of processable traces (spawned by automatic detections), of linkability and convergence and of available profiling/processing technologies have lead to a qualitative shift whereby correlations and profiles can be generated before any preceding stratified interest. This means that humans are detectable, (re)traceable and correlatable far beyond their control: the correlatable traces they produce start to live their own lives becoming the resources of a very extensive, if not unlimited, network of possible profiling devices generating knowledge directly or indirectly concerning and/or affecting them. Hildebrandt, Gutwirth & De Hert are convinced that this shift demands careful monitoring from the perspective of the democratic constitutional state because it likely entails a number fundamental threats such as the influencing of individual behaviour (you act differently if you know that traces you’ll leave will be processed), the sharpening of power inequalities and the erosion of both negative and positive freedom. Next to this Hildebrandt extensively focuses on the fact that the same shift will impact upon our ipse-identity or our essential sense of the self. As the latter is typically under permanent (re)construction in its interactions with the outside world, it is fed with the results of the automatic profiling activities …

Data protection legislation: solution or dummy?

Contrary to what a number of repliers seem to read in their texts, the main authors do not claim that profiling or profiles as such represent a burning and repelling threat to the principles of constitutional democracy and the rule of law. This explains why Gutwirth & De Hert do not plea for a default prohibitionary approach of the phenomenon. They think that profiling are activities that, in a principled way, should be organised by transparency tools, namely tools that ensure the visibility, controllability and accountability of the profilers and the participation of the concerned. Their principled stance is thus similar to the one held in data protection: as a rule the processing of personal data - collection, registration, processing sensu strictu, … - is not prohibited but submitted to a number of conditions guaranteeing the visibility, controllability and accountability of the data controller and the participation of the data subjects. As such they do not argue a principled prohibitory approach, aiming at the enforcement of the individuals’ opacity against profilers. Hildebrandt is more sceptical about the relevance of data protection legislation, as this is geared to the collection of restrictively defined personal data and does not face the problem of the knowledge that is constructed out of anonymous – in itself insignificant – data. But even Hildebrandt does not implicate that we should effectively block all types of data mining; she rather points to the need to rethink issues like privacy, identity and the need to integrate of law and technology in the process of reinventing the right set of checks and balances. 

Gutwirth & De Hert are convinced that the principles of data protection are an appropriate starting point to cope with profiling in a democratic constitutional state as they do, in principle, not prohibit personal data processing, but impose an important number of ‘good practices’ to it.  Nevertheless, while the default position of data protection is transparency rules ("yes, if …"), it does not exclude opacity rules ("no, unless). In relation to profiling two examples of such rules are very relevant. One the one hand, of course, there is the explicit prohibition of the making and taking of decisions affecting individuals solely on the basis of profiling. This rule certainly applies to those forms of profile use that Bert-Jaap Koops admits to cause serious problems. On the other hand, there is the essential purpose specification principle, which provides that the processing of personal data must meet specified, explicit and legitimate purposes. The competence to process is limited to well-defined goals, which implies that the processing of the same data for other aims is prohibited. Processing for different purposes should be kept separated. From a strictly legal point of view, data protection seems to apply to quite a number of forms and phases of profiling, the main condition being that the data can be linked to an identifiable person. However, as Hildebrandt and Koops point out, data protection seems largely ineffective and shows a number of weaknesses, especially in the field of profiling. This is due to (1) the legal articulation of the protection that is geared to protection of personal data rather than knowledge about persons and to (2) the inadequacy of the legal regulations in the face of the speed, the costs and the types of profiling technologies developed today. To remedy this situation an intelligent integration of law and technology is argued, tuned to a renewed empowerment of the European citizen that nourishes her freedom to participate in public and private life, while protecting her liberty against a manipulative environment.


Hildebrandt, Gutwirth & De Hert: what is at stake?  fidis-wp7-del7.4.implication_profiling_practices_03.sxw  James Backhouse: a new social contract
Denis Royer 40 / 45