January 19, 2022

Volume XII, Number 19

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January 18, 2022

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Does Classifying Individuals Based Upon Factual Characteristics E.G., Their Age) Constitute ‘Profiling’ Even if No Inferences Are Made Based Upon The Classification?

Possibly.

While modern privacy statutes in the United States and Europe adopt a similar definition of “profiling,” the term has yet to be judicially interpreted or applied in the United States. Within Europe, the Article 29 Working Party took the position that for an action to constitute profiling three elements must be met:

  1. An activity must involve “an automated form of processing;”

  2. An activity must be “carried out on personal data;”

  3. The objective of the activity must be “to evaluate personal aspects about a natural person.”[1]

The Working Party noted that, by looking at personal aspects of a person, an organization might be evaluating them, without necessarily making any further predictions or inferences. As a result, the Working Party stated that “simply assessing or classifying individuals based on characteristics such as their age, sex, and height could be considered profiling, regardless of any predictive purpose.”[2] It is not clear whether courts within the United States will interpret state privacy statutes with similar “profiling” definitions that go into force in 2023 – such as the California Privacy Rights Act, the Colorado Privacy Act, or the Virginia Consumer Data Protection Act – in a similar manner, or whether they will find that for an activity to constitute profiling some degree of prediction or inference must be made.


[1] WP 251, Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679, adopted on 3 October 2017.

[2] WP 251, Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679, adopted on 3 October 2017, at 7.

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 319
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About this Author

David A. Zetoony Privacy Attorney Greenberg Traurig
Shareholder

David Zetoony, Co-Chair of the firm's U.S. Data, Privacy and Cybersecurity Practice, focuses on helping businesses navigate data privacy and cyber security laws from a practical standpoint. David has helped hundreds of companies establish and maintain ongoing privacy and security programs, and he has defended corporate privacy and security practices in investigations initiated by the Federal Trade Commission, and other data privacy and security regulatory agencies around the world, as well as in class action litigation. 

David receives regular recognitions from clients and peers for...

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