Chilling Effects of Profiling Activities: Mapping the Issues

Abstract

In this article, we provide an in-depth overview of the literature on chilling effects and corporate profiling and connect the two topics. We start by explaining how profiling, within an increasingly data-rich environment, creates substantial power asymmetries between users and platforms (and corporations more broadly). We stress the notion of inferences and the increasingly automatic nature of decision-making, based on user data, as essential aspects of profiling. We then discuss chilling effects in depth, connecting them to corporate profiling. In the article, we first stress the relationship and similarities between profiling and surveillance. Second, we illustrate chilling effects as a result of state and peer surveillance; we then show the interrelatedness of corporate and state profiling, and we finally spotlight the customization of behavior and behavioral manipulation as particularly outstanding issues in this discourse. We also explore the legal foundations of profiling through an in-depth analysis of European and US data protection law. We found that, while Europe has a clear regulatory framework in place for profiling, the US primarily relies on a patchwork of sector-specific or state laws. Besides, there is an attempt to regulate differential impacts of profiling, via anti-discrimination statutes, yet few policies focus on combating generalized, concrete harms of profiling, such as chilling effects. At the end of the article, we bring together the diverse strands of literature in concise propositions to guide future research on the connection between corporate profiling and chilling effects.

Keywords: profiling, inferences, chilling effects, surveillance, data protection, privacy, algorithms, big data, digital footprints

JEL Classification: K33, K39, K00, O33, K19