Who is Profiling Who? Invisible Visibility

Mireille Hildebrandt, Erasmus University of Rotterdam

Abstract

Asking the question whether the fundamental concepts of the Data Protection regulation are still adequate presumes that data protection should be our prime concern. In this paper I will argue that autonomic profiling, based on advanced forms of pattern recognition, produces a type of knowledge that requires both more and less than the protection of personal data. Taking into account the role played by new – non-human – actors such as intelligent agents and distributed multi-agent systems, the legal framework needs a more fundamental reconstruction. Privacy should not be reduced to the hiding of personal data and autonomy should not be reduced to the right to withhold consent in a situation whereas people have no idea of the consequences of the processing of their data. Besides, the invisible visibility of lifestyles, health-risks, earning capacity and other personalised profiles creates the possibility for sophisticated social sorting, requiring concern for illegitimate discrimination. Above all, however, the invisivle visibility warrants legal and technological transparency tools that are lacking in both the legal framework and the design of technological infrastructure of smart environments.