Predictive profiling and its legal limits: Effectiveness gone forever

Hans Lammerant, Paul de Hert

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We examine predictive group profiling in the Big Data context as an instrument of governmental control and regulation. We first define profiling by drawing some useful distinctions (section 6.1). We then discuss examples of predictive group profiling from policing (such as parole prediction methods taken from the us) and combatting fraud (the icov and syri systems in the Netherlands) (section 6.2). Three potential risks of profiling – the negative impact on privacy; social sorting and discrimination; and opaque decision-making – are discussed in section 6.3. We then turn to the legal framework. Is profiling by governmental agencies adequately framed? Are existing legal checks and balances sufficient to safeguard civil liberties? We discuss the relationship between profiling and the right to privacy (section 6.4) and between profiling and the prohibition on discrimination (section 6.5). The jurisprudence on the right to privacy clearly sets limits to the use of automated and predictive profiling. Profiling and data screening which interfere without distinction with the privacy of large parts of the population are disproportional. Applications need to have some link to concrete fact to be legitimate. An additional role is played by the prohibition of discrimination, which requires strengthening through the development of audit tools and discrimination-aware algorithms. We then discuss current safeguards in Dutch administrative, criminal procedure and data protection law (section 6.6), and witness a trend of weakening safeguards at the very moment when they should be applied with even more rigor. In our conclusion, we point to the tension between profiling and legal safeguards. These safeguards remain important and need to be overhauled to make them effective again.
Original languageEnglish
Title of host publicationExploring the boundaries of big data
EditorsB. van der Sloot, D. Broeders, E. Schrijvers
PublisherAmsterdam University Press/WRR
Number of pages29
ISBN (Electronic)978 90 4853 393 0
ISBN (Print)978 94 6298 358 8
Publication statusPublished - 2016


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