January 18, 2022

Volume XII, Number 18

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Does Creating Consumer Segments Based Upon Common Interests Constitute ‘Profiling’?

While state privacy statutes in the United States scheduled to go into force in 2023 and modern European privacy regulations adopt a similar definition of “profiling,” the term has yet to 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

Based upon the above elements, the Working Party stated that if an organization (e.g., a data broker) automatically places individuals into segments and then uses such information (directly or by selling it to a third party) to improve “targeting of . . . goods and services” then the organization has engaged in profiling.2

FOOTNOTES

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 320
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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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