European Council to Adopt Legislative Roadmap to Protect Privacy in Age of Profiling
A council of 47 European countries is expected this year to approve the first international agreement on the use of personal data for online and offline profiling, the head of its law reform department said in an interview. The “recommendation on the protection of individuals with regard to automatic processing of personal data in the framework of profiling” covers online behavioral advertising and other forms of profiling, as well as activities by public authorities such as the police, said Jörg Polakiewicz. The Council of Europe’s effort was prompted by growing threats to privacy from computers’ ability to process data on the Internet, he said. The recommendation is a blueprint for national legislation, he said.
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Not only will the Internet of the future connect humans to devices, but the significant growth in data storage, processing and communication capabilities will also make possible information-gathering on broad population groups, and random and other correlations, the draft explanatory memo says. This will allow the creation of group profiles that can be used classify people and “statistically” predict their behavior, it says.
The emergence of a “smart things society” in which devices are connected to the Internet and coupled with techniques such as cookies and Web bugs will accentuate the profiling and make it permanent, the draft says. The prospect is worrisome, including for the risks of abuse and infringement of fundamental rights, it says.
Profiling may provide benefits for users, the economy and society overall, but it could also unjustifiably deny people access to some goods or services or expose them to high risks of discrimination and attacks on their personal rights and dignity, the draft recommendation says. The council is convinced that profiling must be regulated to protect personal data captured automatically, it says. It urges its member governments to apply the principles in the recommendation to the collection and processing of personal data used in profiling and ensure the same from organizations that participate in profiling, such as software designers, e-communications and information society service providers.
Because of the financial implications for online behavioral advertisers and other profilers, the council took the “unprecedented step” of seeking input from business, which isn’t represented on its committees, Polakiewicz said. The final text strikes a “delicate balance,” but he said he has seen critical comments from online advertising companies that fear the recommendation will be too burdensome.
The recommendation must now clear the council’s steering committee before going to the Committee of Ministers, Polakiewicz said. The next job is to update the 1981 convention on automatic processing of personal data to deal with the privacy challenges created by the use of new information and communication technologies, he said.
The council is also seeking an international agreement for cooperation in protecting critical Internet resources to ensure universal access and stability, said Elvana Thaçi, administrator of the Media and Information Society Division of the Human Rights and Legal Affairs Directorate General. The ultimate goal is to safeguard people’s right of access to Internet content, she said.
Net neutrality may be covered, Thaçi said in an interview. There could be provisions to ensure that actions taken against disruptions and malicious attacks in a country don’t cause harm arose a border, she said. Governments and other players will be bound by commitments aimed at ensuring Internet openness and universality through common responses to technical incidents, she said.
The working group is considering the use of the international legal concept of standard of care, well established in environmental law, Thaçi said. The council will hold a workshop at next week’s Internet Governance Forum in Vilnius, Lithuania, to take comments, she said.