Does Profiling Jeopardize Traditional Principles Of Law?

1. Living in an era of digitalisation and automated decision making has made access to services more effective, efficient and highly convenient. It is hard to ignore that e-commerce has essentially opened up an industry wherein the consumers have the privileged access to be spoilt for choice, at a cost of giving up personal data the value of which they don’t realise. This personal data which serves as attributes to help algorithms understand consumer behavior. In effect, by understanding consumer behavior the algorithm shows products and services that the consumer will be interested in. In the words of the corporations, this act of profiling helps discharge a more effective and satisfactory service.

2. From a legal standpoint, the act of profiling although on the face of it is not illegal1 but definitely poses a variety of threats to the traditional principles of law that have maintained a sense of order in the society . It is in this context I shall attempt to draw your attention to the imminent and continuing peril profiling holds if remained unregulated.

I. The Subtle Propagation Of Discrimination

3. Prohibition of discrimination is not just a nationally but is universally recognized as a right.2 It is important to understand that the act of profiling consumers is a potential tool to propagate discrimination through the digital world of the Internet. For example the access to data that understands the spending capacity of the consumer can lead to prices being listed differently for different people and thus result in price discrimination to a significant extent.3 Additionally, potential employers that employ HR analytical companies to scan through the pool of talent of potential employees can specifically choose a certain person not because he/ she is more qualified for the job but because the potential employee is part of the a specific gender, race, caste, place etc and deny the opportunity to a potential meritorious candidate. Further, if profiling remains unregulated and is deployed on information such as genetics, potential employers and insurance companies may not grant the job or the health insurance merely on the ground that they might have a gene mutation that causes or increase the risk of an inherited disorder, in result violating the principle of equality recognized under Article 14 of the Constitution.4 Thus, the act of profiling in the near future will evolve into a subtle but powerful means of propagating discrimination through several attributes of data obtained knowingly or unknowingly.

II. The Threat to Privacy and Freedom of Speech and Expression

4. It is well known that the right to privacy although universally recognized5 was only recently recognised through the judicial construct by the Hon’ble Apex Court in the case of Justice K S Puttaswamy v UOI6. The proponents of the right to privacy shall agree that consenting to the access and processing of information for a specific purpose is not a violation of the right to privacy. However, with profiling, although you agree to grant access to certain information, the adaptive algorithm can take decisions and the inferences derived may go beyond the purpose you originally consented to process your data. For example your professional networking profile such as LinkedIn mandates that you to link your social media handle (if any) such as Twitter. Since LinkedIn is accessible to HR analytical companies, they gain access to your Twitter account and profile you based on the Tweets you liked, re-tweeted and published yourself. Due to the lack of regulation, LinkdIn sells your data to an HR analytical company who profiles you not just on the basis of your professional profile but gains access to your social media handle as well and as a result of your Tweets and not your talent you could be deemed ineligible for employment to a class of potential employers. Does this go beyond the purpose for which you consented to disclose your information? Does this act amount to the violation of your right to privacy?

5. Further, it is seen that news received in the form of notifications not just on your phone but on your other devices as well is tuned according to your preferences. Once your preferences are understood by the algorithm, it will slowly restrict the access of your newsfeed to those that will suit your needs. On the onset this does not seem illegal, it actually sounds to be very convenient. In the long run it is reasonable to infer that access to information will be restricted without the conscious knowledge of the user since he will be shown what he wants to see. Highly tuned services if permitted to operate in an unregulated and if engaged by the state will restrict the right to access of information.

6. Moreover, It is a settled principle in law that the right to know is a sect of the freedom of speech and expression.7 Another growing concern is that in an effort to curb hate speech, fake news and propaganda through the digital world of Internet, algorithms just don’t identify information that qualify as such but also are slowly being empowered to recognize the individuals if any that effectively block any content generated by that user. Since recognizing content that threatens the order of society is very subjective, there must be a guided approach that must be adopted while coding such algorithms else it will lead to overboard censorship.

7. The Constitution of India envisaged that the people of India be governed by the rule of law. Further, the avoidance of arbitrariness is an integral part of maintaining the rule of law. Here it is to be noted that the normative foundation for advancing the rule of law includes Human Rights law (as discussed above). It is my understanding the algorithms that are deployed for profiling seem to know you better than you know yourself and thus effortlessly and arbitrarily manage to intrude on your rights. So long as systems such as profiling are permitted to operate on an unregulated playing field, it will continue to threaten the rule of law.

About the Author: Eashwari Nair, student of law at the Symbiosis Law School, Hyderabad, Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at swapnils@khuranaandkhurana.com

References:

[1] Recital 71 of the GDPR recognises the act of profiling.

[2] Art 15 of the Indian Constitution, Art 7 of the Universal declaration of Human Rights.

[3] Although a contentious issue and can be argued both ways.

[4] Discussed in the case of United India Insurance Company Limited v Jai Prakash Tayal ,  2018 SCC  OnLine Del 7415

[5] Art 17 ICCPR, Art 8 ECHR, Art 12 UDHR

[6] (2017) 10 SCC 1

[7] As discussed in the case of State of UP v Raj Narain (1975)4 SCC 42; M.P. Jain, “Indian Constitutional Law” Lexis Nexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p. 1081, 1083.

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