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D7.4: Implications of profiling practices on democracy

Martin Meints: new concept of implicit consent  Title:
 Bert-Jaap Koops: human decency and counter profiling


Angelos Yannopoulos: transparency for corporations and government, opacity for human beings

Written in a refreshingly unconventional style, this reply starts from Hildebrandt’s position that it is a ‘critical error to concentrate on protection of data instead of protection against knowledge engineering’ (section ). On top of that he advocates a crucial distinction between the transparency and opacity of humans versus the transparency and opacity of corporations and government. While humans should be protected by opacity, the dealings of corporations and governments should be transparent. However, Angelos Yannopoulos questions the possibility for legal theory and philosophy to inspire governments or corporations to protect our privacy, if we – the people – do not effectively demand such protection. The author is a firm believer in a kind of Realpolitik; he sees politics but also law as nothing more than the result of a battle of interests. Whoever wins gets his way in the design of legal protection. For that reason he wonders if civil society will ever be interested in promoting privacy against data mining; inference of future behaviour from masses of trivial data. His common sense tells him that most people are very willing to accept a trade-off between personalised services and disclosure of trivial (personal) data. This means he does not expect a reinvention of democracy and rule of law: this he considers too much effort, while it seems not to be in the interest of those in charge.

After this rather pessimistic account of human society, Yannopoulos suggests two possible solutions: education and technology itself. Education (forcing people to become aware of their interest in privacy) is discarded as wishful thinking, after which the author briefly explains the manner in which technology can save us from technology. He does this by focusing on the AmI environment that poses the most extreme threats to our privacy: how to achieve its benefits while banishing its dangers? The solution he proposes centres around open source software, as this should implement the transparency pleaded by Gutwirth & De Hert. Rather than law, the technical infrastructure would thus create the possibility to disclose the way our data are in fact collected and processed and this would enable us to check whether our privacy is violated. 


Yannopoulos answers the question ‘who is profiling who?’ and connects the answer (corporations and governments profile human persons) with a clear choice on who should be transparent and who should be opaque. His choice thus fundamentally differs from the one made by data protection legislation as this basically allows the profilers to make us – the humans – transparent, on the condition that the profilers are made transparent to a certain extent (and with some exceptions for sensitive personal data). The second point the replier makes is that what should interest us is not the protection of sensitive personal data but the protection against knowledge engineering that builds on our trivial data. His solution is less technological than he claims; the choice for or against open source software in the end is mixed up with legal issues (intellectual property, trade secrets) and education (how do we become aware of the importance of open source software and of the dangers of trading our trivial data for enhanced services). As mentioned in section technology is always already entangled with its social context, so the challenge remains how to create the legal infrastructure to enforce the technological solutions and how to design technological infrastructure that enforces the legal imperatives.



Martin Meints: new concept of implicit consent  fidis-wp7-del7.4.implication_profiling_practices_03.sxw  Bert-Jaap Koops: human decency and counter profiling
Denis Royer 43 / 45