D7.4: Implications of profiling practices on democracy

Title: THE DEMOCRATIC CONSTITUTIONAL STATE AND THE INVENTION OF TWO COMPLEMENTARY LEGAL TOOLS OF POWER CONTROL: OPACITY OF THE INDIVIDUAL AND TRANSPARENCY OF POWER

The democratic constitutional state and the invention of two complementary legal tools of power control: opacity of the individual and transparency of power

In a number of publications we have summarised the foregoing by highlighting that the development of the democratic constitutional state has in fact led to the invention of two complementary sorts of (constitutional) legal tools. We make a distinction between on the one hand tools that tend to guarantee non-interference in individual matters or the opacity of the individual, and on the other, tools that tend to guarantee the transparency/accountability of the powerful.

Opacity tools: opacity of the individuals and limits to the reach of power

Opacity tools protect individuals, their liberty and autonomy against state interference and also of interference of other (private) actors. They are essentially linked to the recognition of human rights and the sphere of individual autonomy and self-determination. In sum, tools of opacity set limits to the interference of power in relation to the individuals’ autonomy and thus with the freedom to build identity and self. It can also be said that opacity tools imply the possibility and protection of the anonymity of individuals and their actions. 

The ideas behind such tools can be understood by recalling the function of the first generation of human rights. By recognising human rights, the revolutions of the 17th-18th centuries in England, the US and France laid the foundations for a sharper legal separation between the public and private spheres. The constitutional recognition of these rights led to the creation of a sphere of individual autonomy and self-determination, where the citizens may, if they choose, live their lives without interference of the state and other private actors. Hence, human rights have empowered individuals through recognition of their liberty and prerogatives. On the other hand, limits to state power were drawn through the recognition of the autonomy of the citizens.

What is essential to opacity tools is their normative nature. Through these tools, the (constitutional) legislator takes the place of the individual as the prime arbiter of desirable or undesirable acts that infringe on liberty. This collective, normative dimension of opacity tools explains the complex relationship between human rights and individual liberty. The harm principle as a yard stick to measure wrongful infringements on individual liberty is replaced by a more formal criterion, and ad hoc balancing is replaced by categorical balancing.  

Transparency tools: channelling power and making power transparent and accountable

The second set of constitutional tools is connected to the principles of the democratic constitutional state that limit state powers by devising legal means of control of these powers by the citizens, by controlling bodies or organisations and by the other state powers. These tools have the common feature that they are intended to compel government and private actors to ‘good practices’ by focusing on the transparency of governmental or private decision-making and action, which is indeed the primary condition for an accountable and responsible form of governance. The system of checks and balances, for example, installs the mutual transparency of state powers, while the controllability and accountability of government by the citizens implies free and easy access to readily available government information, the enactment of swift control and participation procedures, the creation of specialised and independent bodies to control and check the actions of government, and so on. In other words, transparency tools tend to make the powerful transparent and accountable: they promote ‘to the guarding of the guardians’ or ‘the watching of the watchdogs’.  

Distinguishing both: a different default position (The example of Articles 7 & 8 EU-Charter of Human Rights)

The tools of opacity are quite different in nature from the tools of transparency. Opacity tools embody normative choices about the limits of power, while transparency tools aim at the channeling of normatively accepted exercise of power. While the latter are thus directed towards the control and channelling of legitimate uses of power, the former define which uses of power are illegitimate and excessive, and protect citizens against it. The latter take into account the temptation to abuse power, and empower the citizens and special watchdogs to keep an eye even on the legitimate use of power: they put ‘counter powers’ or countermeasures into place. The former determine what is in principle out of bounds for governmental and private actors and, hence, what is deemed so essentially individual that it must be shielded against public and private interference. On the one hand there is a regulated acceptance; on the other there is a prohibition rule, which is generally subject to exceptions. Opacity and transparency tools set a different default position: opacity tools install a ‘No, but (possible exceptions)’-rule, while transparency tools foresee a ‘Yes, but (under conditions)’-rule.  

These differences between both sorts of tools appear clearly in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (incorporated in the articles II-67 to II-68 of the Draft Constitution of the European Union) : 

Article 7 : ‘Everyone has the right to respect for his or her private and family life, home and communications’.

Article 8: ‘Everyone has the right to the protection of personal data concerning him or her. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data that has been collected concerning him or her, and the right to have it rectified. Compliance with these rules shall be subject to control by an independent authority’.

These two articles nicely express the difference between opacity and transparency tools. Article 7 of the Charter, which is a copy of the first section of Article 8 of the European Convention on Human Rights, provides a good example of an opacity tool for its principle is a prohibition of interferences with the individuals’ private and family life, home and communications. In a more general way it protects the individuals’ privacy (or autonomy). It is normative and prohibitive, although of course these prohibitions are not absolute: the rule is a ‘no’ but exceptions under a number of conditions are not only possible, but, as shown by the case law of the Strasbourg Court, also current. On the other hand, Article 8 provides a good example of a transparency tool because it organises the channelling, control and restraint of a threatening practice, namely the processing of personal data. Data protection legislation does not prohibit the processing of personal data but regulates it. It guarantees control, openness, accountability and transparency of the processing of personal data. The rule is a ‘yes’, but only if a number of conditions are met. Under the current state of affairs, data controllers (actors that process data) are recognised to have a right to process data pertaining to others. Hence, data protection is pragmatic of nature: it assumes that private and public actors need to be able to use personal information and that this must be accepted for societal reasons.