Criminal Profiling and Non-Discrimination: On Firm Grounds for the Digital Era?

Big data analytics allow law enforcement agencies to build profiles of individuals, and groups of individuals, in order to guide the decisions they need to make for the prediction, prevention, detection and combat of crime. This chapter analyses the role of non-discrimination law, and more specifically the legal discourse on non-discrimination grounds, as a lens to evaluate the use of (group) profiles for security purposes. The chapter will first explore the Law Enforcement Directive (Directive 2016/680) to ascertain the legal limits of profiling from a data protection perspective. Mainly aimed towards safeguarding the fundamental rights to privacy and data protection, data protection laws nonetheless remain sensitive towards the potential discriminatory nature of personal data processing. In the chapter’s second section, it will be ascertained, through an analysis of the European Court of Human Rights’ (ECtHR) case law, to what extent the use of profiles, as they are deployed to differentiate amongst individuals or groups of individuals, can be considered problematic from a non-discrimination perspective. The chapter therefore aims to identify the key criteria developed by the ECtHR for new differentiation grounds to engage the European Convention on Human Rights’ non-discrimination clause. The legal analysis will be juxtaposed to the risks big data analytics pose to the fundamental rights of equality and non-discrimination. It will be argued that in order to adequately respond to the new threats of technology, both a return to a procedural and instrumental conception of equality and non-discrimination, and a thorough insight into the data and tools used by criminal authorities, might be needed.