Regulating profiling in a democratic constitutional state

Abstract

In this contribution De Hert and Gutwirth rethink notions such as privacy and data protection against the background of the principles of the democratic constitutional state. They focus upon the necessity to differentiate between privacy and data protection in relation to the distinction they make between opacity and transparency tools. Proceeding by the prohibition of certain kinds of conduct, opacity tools tend to guarantee non-interference in individual matters by the state and private actors. 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, autonomy and identity-building. Opacity tools are normative. Transparency tools, on the other hand, are meant 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 a responsible form of governance. In other words, transparency tools tend to make the powerful transparent and accountable. For De Hert and Gutwirth by default privacy is an opacity tool and data protection a transparency tool. De Hert and Gutwirth further argue that profiling is an activity which, in a principled way, should be organised by transparency tools, namely tools which ensure the visibility, controllability and accountability of the profilers and the participation of the concerned. Their principled stance is thus similar to the one held in data protection: as a rule the processing of personal data - collection, registration, processing sensu strictu - should not be prohibited but made conditional from the perspective of guaranteeing transparency. As such they do not defend a principled prohibitory approach aiming at the enforcement of the individuals' opacity against profilers. © 2008 Springer Netherlands.