Some Reflections on Profiling, Power Shifts, and Protection Paradigms

Abstract

This reply critically analyses the claims made by Hildebrandt on the implications of profiling, principally by distinguishing the various forms and stages of profiling and by analysing their impact on various constitutive features of the 'Rechtsstaat'. How serious is this potential impact in terms of legal protection, notably on privacy, data protection, and ipse identity? Could the ability of weak parties to counter-profile the profilers restore the balance of power? If not, two other directions should be explored for containing serious profiling risks, both of which require paradigm shifts. First, protective norms should be built into technology, for instance through profile 'flags'. Second, legal protection should focus more on redressing wrongs than on preventing abuse, emphasising non-discrimination rather than privacy, for instance by stronger supervision mechanisms like a Profiling Authority.

Keywords: profiling, privacy, data protection, power relations, code as law