Broadly, these notes will examine such challenges and identify how the law has sought to regulate automated decision-making.
We examine the privacy and public policy implications of employing algorithmic processes to profile individuals and to make decisions of legal impact.
Week 10:
Legal Responses to profiling and automated decision-making:
Overview:
1. Profiling and Optimisation
- Profiling and its relevance to the digital ecosystem
- Regulation of ‘cookies’, and policy implications
2. Algorithmic Decision-Making
- Regulation by algorithmic decision-making
- Code is law- where algorithms regulate us
- Regulation of algorithmic decision-making
- Where we try to impose legal restraints on algorithmic decision-making
- Future Perspectives
Definitions and context:
‘Big Data’:
- ‘Novel ways in which organisations, including governments and businesses, combine diverse digital datasets and
then use statistics and other data mining techniques to extract from them both hidden information and surprising
correlations’.
- Rubenstein, Big Data: The End of Privacy or a New Beginning
- Others have described it as Vs
- Volume: high volume of data.
- Within volume, huge variety of data. Not all from one source.
- Veracity – data should be accurate/good data
- Velocity – being able to mine the data very quickly
- Article called slaves to big data considers the surprising correlations
- Often moving away from traditional scientific method- where you test a hypothesis.
- With big data, you don’t start with a hypothesis. Rather, the data reveals correlations.
- Data set doesn’t tell us why- missing the link between the claim and the reason.
- As lawyers, having a lot of speculation. How do you test this? Moving away from
causation [the why], to correlation.
- Problematic for things like presumption of innocence [for example]
Profiling:
- ‘Profiling’ means any form of automated processing of personal data consisting of the use of personal data to
evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning
that natural person's performance at work, economic situation, health, personal preferences, interests, reliability,
behaviour, location or movements. Article 4(4) GPDR
- Don’t need big data to profile- can be any source of information to come to conclusions
- Not just categorising people but evaluating them.
Algorithmic Regulation:
- ‘..decision-making systems that regulate a domain of activity in order to manage risk or alter behaviour through
continual computational generation of knowledge from data emitted and directly collected (typically in real time
on a continuous basis) from numerous dynamic components pertaining to the regulated environment in order to
identify and, if necessary, automatically refine (or prompt refinement of) the system’s operations to attain a pre-
specified goal.’ – Yeung
- Where we are using data processing techniques in order to nudge people in particular directions
- Essentially code is law.
- Can learn from previous efforts to regulate- refine as it goes on.
- Using algorithms in order to achieve a pre-specified goal
Profiling and the digital ecosystem:
- Like AI or machine learning – one form of statistical data processing
Types of advertising:
- Evidence of algorithms being used daily is in our interaction with big platforms
- Business model on the internet is online behavioural advertising.
- Platforms offered on a take-it-or-leave-it basis.
- We’ve come accustomed to personalised advertising
- Contextual: Tailored to the content that is viewed or accessed by the user.
- Used to be more popular prior to behavioural.
- Less intrusive
- Segmented: Advertising that is based on the data communicated directly by the data subject to the website in
question.
- A little more refined.
- Gmail scans key words from your email in order to advertise to you. Depending on what is on email, could
be sensitive information.
- Using information that the individual has provided the company and advertise on that basis.
- Less data intensive
- Behavioural: Advertisements based on the observation and analysis of the users’ activity over time.
- Through the use of cookies – we’ve become accustomed.
, - First party cookies- the website you get the cookie from – amazon uses first party cookie. Amazon
feeds data to that cookie. It uses that data to generate a profile and then offers you ads. Only
amazon gets access to this information
- Others opt for third party cookies- Google and smaller companies use this- the website operator
that drops the cookie on your computer is part of a network. When you visit that website or other
websites on the network, cookie retains information from all.
- Get a greater variety of volume of data.
- Most websites are part of this third-party network.
- Debate:
- Are we in the middle of a data bubble?
- We assume that behavioural advertising is better/more effective, but economic data has found that
individuals are less than 1% likely to click a personalised ad.
- Launched investigation on data used
Legal framework:
- Revised Art. 5(3) of the E-Privacy Directive (following Amendment by Directive 2009/136 EC):
- ‘Member States shall ensure that the storing of information, or the gaining of access to information already
stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber
or user has given his or her consent, having been provided with clear and comprehensive information in
accordance with Directive 95/46/EC’.
- Specialised
- Currently up for reform but derailed as it has been contentious.
- Existing rules dating from 2009
- Rules: if you place a cookie on someone’s device, need to have explicit consent. Not opting out,
but positive action is needed to give consent.
- Policy/legal problem: worried that profiling is intrusive and that individuals weren’t given
the opportunity to say no. the legal response= offer consent. But the consent you’re being
offered are the cookie banners
- Washington Post:
- Have to pay for premium, where you essentially pay for no cookies and therefore paying for privacy
- Now creating a social system
- But some can argue that journalism isn’t free- so when companies like Washington Post
ask to pay, perhaps not unfair need to subsidise it somehow
- Can Facebook develop a similar system?
- Issue here, since this is the core of people’s daily lives and would be an unfair split
Tracking Wall:
- Where if you don’t click consent, you can’t access the content beyond that. Consent tied to the provision of the
service.
- Some academics arguing that the GDPR doesn’t ban tracking walls
- Borgesius et al: the GDPR does not ban ‘tracking walls’, they are permissible as long as you get
their consent should the reformed E-Privacy Regulation do so?
- Can such consent be said to be ‘freely given’?
- Monopoly situations
- Power balance here
- Is consent freely given if the only alternative is having no access?
- Not having access to e.g. Facebook has implications- societal, career wise.
- Some argue that the service isn’t public provision. There is no obligation to access the
service.
- Data of vulnerable or ‘captured’ individuals
- ‘When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the
performance of a contract, including the provision of a service, is conditional on consent to the processing of
personal data that is not necessary for the performance of that contract.’ Article 7(4)) GDPR
- Consent isn’t freely given if it is made conditional to saying yes that is not necessary for the
performance of that contract.
- Facebook would argue that it is necessary- it is the only way they make money.
- Is that necessary? On face value, yes-
- But, can it be said to be more than is necessary? How much data is too
much?
- We don’t have decisive jurisprudence on this, but one case [see below]
- Facts:
- Significant case- first judgement about consent before the CJEU
- Website called planet49- which runs a free lottery, but when signing up to the free lottery, you can only
sign up if you consent to them giving your personal data to 30 commercial partners so they can give
advertising to you.
- There were 2 tick boxes
- Two tick-boxes (first mandatory) to participate in a promotional lottery:
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