D7.4: Implications of profiling practices on democracy

Title: MARTIN MEINTS: NEW CONCEPT OF IMPLICIT CONSENT

Martin Meints: new concept of implicit consent

In his salient presentation of some of the issues touched upon in chapters and , Martin Meints explores the applicability of data protection legislation in the case of profiling, with special regard for the AmI environment that depends on a proliferation of interoperable profiling processes and seems to provide the litmus test for data protection legislation. Meints indicates the limits of data protection legislation cause by the specificity of profiling practices: (1) the production of false negatives and false positives caused, for example, by low data quality, especially when group profiles are applied to individuals; (2) profiling implies the use of data for an unlimited amount of – at the time of data-collection – unforeseen purposes, which creates enormous tension with the requirement of explicit consent and the purpose limitation principle; (3) the process and occurrence of profiling in general is not at all transparent for the users, profiling methods are often considered a trade secret and often anonymised data that fall outside the scope of data protection legislation are used for decisions affecting persons; and (4) on top of that exceptions and limitations of several of the data protection principles seriously restrict the applicability and/or the effectiveness of the legislation. Quite apart from all that Meints points to the lack of resources to enforce compliance with the Directive 95/46 EC, but he considers this to be a problem of all types of legislation. In his discussion of profiling in AmI Meints argues that the tension between data legislation principles and interconnected networks that collect, store and process data in real time may turn data protection legislation into a totally inadequate instrument. Unless we rethink our understanding of (implicit) consent and invent the technologies that combine personal identity management with privacy protection, AmI may indeed cause insurmountable problems for the implementation of D95/46 EC. However, Meints is optimistic about the creative forces within our constitutional democracies. He firmly believes the problems will be dealt with in due time one way or another.

Referring to Hildebrandt, above, it might be the case that the problems that face data protection legislation are not inherent in all types of law, but typical for administrative legislation that – other than private and criminal law – in the first instance entirely depends on governmental techniques for implementation (monitoring, prosecution and sanctioning those that violate the newly enacted legal norms). This confirms the need to rethink data protection in terms of integration of legal norms and technological infrastructures.