
In this chapter I discuss some of the crucial implications of profiling practices for identity, legal subjectivity, democracy and rule of law. To this end I will attempt to answer (or at least raise) the question if and how the information and/or knowledge generated by these technologies can be made justiciable. First I will explain what is meant by the term profiling practices (section 2). Second I will discuss the purposes and some of the effects of the type of knowledge these practices produce (section 3). Third I will indicate in what ways profiling technologies produce a new type of knowledge (section 4). Fourth I will explore the way the law tries to deal with this type of knowledge, raising some questions about the effectiveness of the law as it tries to fit this kind of knowledge into the present legal framework (section 5). Fifth I will discuss the crucial difference between a profile as a correlated data subject and the person of flesh and bones as a correlatable human (section 6). Sixth I will explore the possibilities for the law to make profiling practices justiciable. I will claim that for data protection legislation to take effect – that is, for profiles to become justiciable - both specific technological design and an effective fair trial are preconditional. Finally I will indicate how the law of a constitutional democracy in fact both presumes and – for this reason - should create a position from where humans as linkable data subjects with a sense of self can make knowledge-constructs like profiles justiciable (section 7).
- Profiling,
- correlations,
- law,
- justice,
- privacy,
- virtualization
- Computer Sciences and
- Law
Available at: http://works.bepress.com/mireille_hildebrandt/53/