At the request of the President of the Senate, the Advisory Division of the Raad van State issued a so-called information on the bill on the Data Processing by Cooperative Organizations Act. The Senate made the information public on November 24, 2021.
The Bill on Data Processing by Joint Ventures (WGS) provides a legal basis for joint ventures. These are associations of administrative bodies and private parties that jointly process data for weighty general interests, such as combating fraud and organized crime. The bill makes it possible for joint ventures to use automated data processing for this purpose.
The bill is currently before the Senate. Because of the adjustments to the bill since the advice of the Advisory Division in late 2019(opens in new window)(refers to another website), the Senate has asked for information. In doing so, the Advisory Division was first asked to give an opinion on the scope of the amended bill, also considering the right to privacy. The Advisory Division was also asked to address the risks of unequal treatment and discrimination resulting from the use of profiling.
According to the Advisory Division, the bill is a significant improvement over existing practice. At present, data processing in the partnerships in question takes place without a legal basis. Furthermore, the Advisory Division considers it important that the government has an important task at this time to combat serious and, among other things, subversive crime. In this sense, not only the protection of personal data but also effective crime fighting constitutes rule of law. In this broad context, the proportionality of the bill must be assessed.
The Advisory Division realizes that the bill allows potentially far-reaching forms of data processing. Not all risks associated with this can be excluded by law. Therefore, it is crucial that the legislature be able to rely on good quality implementation practice. That requires not or not primarily further rules or protocols, but professionalism and expertise on the shop floor. The extent to which this is achieved will determine confidence in a government that processes personal data lawfully and effectively.
The amended bill goes a long way toward meeting the legal requirements for significant land law measures. A prerequisite, however, is the adequate and thus careful implementation of this law and the resulting further regulations.
Partly for this reason, the Advisory Division calls attention to the bill's delegation bases for introducing new cooperative arrangements. The essential elements of these new partnerships should also be laid down in a formal law. In any case, the bill should be amended for this in due course.
In addition, the Advisory Division calls attention to the principle of so-called purpose limitation. Pursuant to the General Data Processing Regulation (AVG), data may only be collected and processed for specified, explicit and legitimate purposes. The Advisory Division notes that a certain level of abstraction is inevitable when defining the purposes of data processing. This makes careful implementation all the more urgent. It will have to be examined in each case whether and, if so, how the purpose limitation principle can be complied with.
Moreover, given this principle, further arguments should be made as to how the Care and Security Houses fit within the WGS. If this is not possible, these collaborative organizations should be removed from the bill.
Even where compliance with Article 1 of the Constitution and other equal treatment and non-discrimination regimes is concerned, the Advisory Division stresses the importance of careful implementation practice. The bill contains several safeguards that could theoretically reduce the risks of unequal treatment and discrimination resulting from automated data analysis. Nevertheless, in the various phases of the process of automated data processing, there is always the question of whether an interplay of (personal) data could result in unequal treatment or discrimination during implementation. Careful implementation of the legal safeguards in practice is crucial in this regard.
To this end, the Advisory Division believes it is important to invest in professionalism and (legal) expertise on the shop floor. Investments must also be made in a culture in which it is possible and permissible to deviate from algorithmic outcomes. In addition, the Advisory Division points to the use of balancing frameworks to promote that algorithms are created carefully and with respect for relevant fundamental rights. Also, relevant third parties, such as interest groups, should be involved in the design of the algorithms used by a partnership. This can prevent unlawful processing and also increase public support for the use of algorithms. Finally, the Advisory Division points out the importance of careful evaluation and feedback when it comes to the results of the application of algorithms.
Read the full opinion.
