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D7.4: Implications of profiling practices on democracy

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


Bert-Jaap Koops: human decency and counter profiling

In his – intentionally – provocative essay in reply to the main authors Koops seems to take a similar view towards human society as Yannopoulos: in his short assessment of the state of art concerning privacy (between brackets in section ) he declares the end of privacy in today’s world and – and like Yannopoulos he seems at that point a firm believer in Realpolitik (we better stop worrying about privacy, because nobody does?). However, again like the previous replier, he seems preoccupied with privacy nevertheless. Unlike Yannopoulos and Hildebrandt, Koops does not see much of a problem in profiling and tries to enrich the reader with a whole set of distinctions that should convince the reader that not much is at stake anyway. After that he declares privacy, data protection and ipse-identity to be the three legal principles of democracy and rule of law – even though he complains that the main authors seem focused on privacy and forget other important legal principles like fairness and non-discrimination. Apart from his nice demagogy (suggesting the authors of the main texts are arguing ‘lightly’, as we are told several times, and suggesting that they find profiling repelling and try to denounce it), Koops brings three important points into the discussion. First he claims that the impact of advanced profiling technologies brings us nothing very new, second he claims we should only worry about abuse of the use of profiles in individual cases (discrimination or unfair treatment), and third he indicates that counter profiling could in fact empower citizens and thus enhance their position versus corporations and government.  


As to the distinction Koops makes between collection of data, data mining and profile-application, the question arises whether the interesting thing about advanced profiling practices is perhaps the blurring of such simple borders (as often indicated, monitoring data subjects in order to construct profiles takes place during the application of individual profiles; the three phases are not only interdependent but overlap). Apart from that, collection and storage of data, and data mining techniques – extensively described in FIDIS deliverable 7.2 – are of course preconditional for the application of an individual profile (whether group or personalised). The problems with profiling is that massive data collection and storage provides us with an infrastructure that shifts the balance of power to those that have access – thus impacting equality and autonomy of individual citizens.

As to the fact that profiling brings us nothing very new Koops does not really make a case, but rather demands empirical research that proves the point the authors of the main text try to make, which is that profiling practices will have a profound impact on human beings because of the scope, low cost and the automated inferences made. It is, however not the case that the main texts argue ‘rather lightly’ that such impact can be expected, but argue on a more precise, theoretical level that such impact involves more than just explicit discrimination. Evidently the theoretical argument does not preclude empirical research, but could – on the contrary – guide empirical research. 

As to the point that we should only worry about actual abuse and focus our attention on human decency, the whole point of the main texts is that profiling (1) has many more implications than just abuse (for instance a shift in the balance of power) and (2) that before building an infrastructure that enables manipulation and abuse, we should carefully research legal and technological possibilities to protect the positive and negative freedom of citizens. Human decency is a wonderful humanistic value, but we all know that rule of law was invented because we cannot count on the human decency of those in power and would rather have the legal and political tools to fend for ourselves (why invent rights if you can do with duties?). 

This brings us to the last point Koops makes: what about counter profiling? Could this restore a balance of power between individual citizens on the one hand and corporations and government on the other hand?  Perhaps the central tenets of democracy and rule of law derive from what lawyers call the democratic paradox, or the paradox of the rule of law: governments or corporations should not be seen as enemies of individual citizens, precisely because the division of powers is such that they can cooperate on a reasonably equal footing (private law attributing legal tools to establish ‘equal bargaining powers’; criminal law attributing defendants with the legal tools to establish ‘equality of arms’ in due process). So depending on spontaneous action of individual citizens that initiate counter profiling may only work if a techno-legal infrastructure is constructed, that supports such interaction – empowering them to achieve some transparency if their lives are affected by profile-based decisions. The suggestions Koops makes are very fruitful in this direction – keeping in mind the very adequate recommendations of Meints from the field of privacy enhancing technologies and the warnings of Backhouse that the trust of citizens may ultimately depend on the extent to which they consider interests protected.




Angelos Yannopoulos: transparency for corporations and government, opacity for human beings  fidis-wp7-del7.4.implication_profiling_practices_03.sxw  Bibliography
Denis Royer 44 / 45