Open Journal of Philosophy, 2018, 8, 192-205
ISSN Online: 2163-9442
ISSN Print: 2163-9434
10.4236/ojpp.2018.83014 May 11, 2018 192 Open Journal of Philosophy
Personal Data v. Big Data in the EU: Control
Lost, Discrimination Found
Maria Bottis, George Bouchagiar
Ionian University, Corfu, Greece
We live in the Big Data age. Firms process an enormous amount of raw, u
structured and personal data derived from innumerous sources. Users consent
this processing by ticking boxes when using movable or immovable devices
and things. The users’ control over the processing of their data appears today
mostly lost. As algorithms sort people into groups for various causes, both l
gitimate and illegitimate, fundamental rights are endangered. This article e
amines the lawfulness of the data subject’s consent to the processing of their
data under the new EU General Data Protection Regulation. It also explores
the possible inability to fully anonymize personal data and provides an ove
view of specific “private networks of knowledge”, which firms may construct,
in violation of people’s fundamental rights to data protection and to
non-discrimination. As the Big Data age is here to stay, both law and tec
t together reinforce, in the future, the beneficent use of Big Data,
to promote the public good, but also, people’s control on their personal data,
the foundation of their individual right to privacy.
Personal Data, Consent, Control, Discrimination
In the age of Big Data (King & Forder, 2016: p. 698; Giannakaki, 2014: p. 262),
information (Lessig, 2006: pp. 180-185; Summers & DeLong, 2001) fully con-
firms its etymological origin (Araka, Koutras, & Makridou, 2014: pp. 398-399) and
becomes abundantly available (Himma, 2007). It constitutes a mass-produced
good (Battelle, 2005), consumed as a commodity, rather than leveraged as a tool
for personal growth of the individual or the development of democratic societies
(Koelman, 2006). Information, including personal data (i.e. “any information
How to cite this paper:
, G. (2018).
Personal Data v. Big
in the EU: Control Lost, Discrimina-
Open Journal of Philosophy, 8
March 22, 2018
May 8, 2018
May 11, 2018
Copyright © 201
8 by authors and
Research Publishing Inc.
This work is licensed under the Creative
Commons Attribution International
License (CC BY
M. Bottis, G. Bouchagiar
10.4236/ojpp.2018.83014 193 Open Journal of Philosophy
relating to an identified or identifiable natural person (‘data subject’); an identi-
fiable natural person is one who can be identified, directly or indirectly”, see Ar-
ticle 4(1) of GDPR), has acquired independent economic value (Pasquale, 2015:
p. 141; Hugenholtz & Guibault, 2006) and, thus, new and innovative business
models constantly emerge and dominate the market. For instance, a business
that owns no vehicles (such as Uber) may dominate the “taxi market”, while
large “hoteliers” (e.g. Airbnb) may own no property at all (Chesterman, 2017).
Firms, thus, process raw (Giannakaki, 2014), unstructured (Mayer-Schönberger
& Cukier, 2013: p. 47) and personal (Picker, 2008; Tene, 2008) data (Scholz,
2017: pp. 9-12) from a multiplicity of sources (Tene, 2011). The Internet of
Things (Panagopoulou-Koutnatzi, 2015a) only dramatically accentuates the
huge potential of these vast collections of information (Petrovic, 2017: p. 187).
How do firms obtain data from people? A way to extract them is a peculiar
quid pro quo: Data constitute the “fee” that users “pay” for multiple “free” digi-
tal services. This “deal” has not only been accepted by a number of institutions
(European Commission, 2017), but has also become both a global phenomenon
and an everyday business practice. While providing a service, e.g. an e-mail ser-
vice, a firm can collect and process personal information contained in the e-mail
(Prins, 2006: p. 229). Data collected may also concern e.g. the language the user
speaks or her mobile phone or her real location (or even device-specific infor-
mation, such as hardware model, operating system version, unique device iden-
tifiers and mobile network information). In addition, when a user stores her dig-
ital, and sometimes personal, files using Cloud Computing (for instance, Drop-
box, Google Drive, Sky Drive, i-Cloud), the provider, i.e. the company that offers
the cloud service, may process data contained in the user’s (Lidstone, 2014) files
stored in the “clouds” (Morozov, 2011: p. 286). Finally, a cornucopia of data that
relate to a user’s health, movement or just living patterns (e.g. heart rate, blood
pressure, or even sleep times) may be collected and processed as long as users,
accompanied by smart devices (Brabazon, 2015) and selecting from innumerous
applications (Mayer-Schönberger & Cukier, 2013: p. 94), measure themselves
during their everyday physical activities.
Thus, countless online activities, a standard feature of everyday life, involve
the production and the processing (Tene & Polonetsky, 2013: p. 255) of an un-
precedented volume of personal data (Committee on Commerce, Science, and
Transportation, 2013). Although it is doubtful whether someone’s recorded
heart rate constitutes personal data, many, or perhaps most of the kinds of in-
formation described above as examples are, actually, personal data under the
General Data Protection Regulation of the EU. This is because in the age of Big
Data, the collection of a huge volume of data enables firms to draw numerous
conclusions that relate to one person and makes it possible to identify a natural
person. Provided that an item of information collected by a company relates to a
natural person, who can be identified, directly or indirectly, this information is
personal data (CJEU, 2003: p. 27; A29DPWP, 2007, 2008). In other words, the
criterion that has to be met, and which “makes” the data personal is not actual
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10.4236/ojpp.2018.83014 194 Open Journal of Philosophy
identification, but the capacity to identify, directly or indirectly, one person
(Tene, 2008: p. 16). To sum up, if there is a capacity to identify the individual, to
whom the “recorded heart rate” mentioned above relates, the data are personal
and in particular health data (Panagopoulou-Koutnatzi, 2015b) and are fully re-
gulated by the GDPR.
After having collected masses, sometimes, of personal data, which users pro-
duce “just by existing” (Powles & Hodson, 2017; Gray, 2015, Brabazon & Red-
head, 2014), many firms behave as “owners” (Prins, 2006: pp. 223-224; Almunia,
2012) of this information (Cohen, 2000: p. 1375), by exchanging it (O’Neil, 2016:
151; Prins, 2006: p. 228; Hoofnagle, 2003; Michaels, 2008) or by further
processing it (Crawford & Schultz, 2014). In this case, some scholars even talk
about theft of humanistic property (Mann, 2000), this theft having been perpe-
trated by private enterprises, while others argue that natural persons should re-
ceive fair compensation for the collection, processing, exchange and use of their
personal data (Litman, 2000), since there should be no free lunch when it comes
to invading privacy (Laudon, 1996: p. 103).
Given the above practices, which show at least an important loss of the user’s
control over her personal data, this paper examines the validity and lawfulness of
the data subject’s consent to the processing of their personal data, studies the
inability to anonymize such data and also, provides an overview of specific “pri-
vate networks of knowledge”, which any digital company is able to build (own
and control) in violation of the fundamental right to non-discrimination.
2. The Subject’s Consent to Data Processing
One of the fundamental principles of data protection law in Europe and beyond
is respect for personal autonomy (Bottis, 2014: p. 148). Legal provisions on per-
sonal data safeguard constitutionally-protected rights to informational
self-determination (Kang, Shilton, Estrin, Burke, & Hansen, 2012: p. 820).
Hence, it has been consistently supported by authors that the fundamental (Ar-
ticle 8(1-2) of CFREU; Article 16(1) of TFEU) right to the protection of personal
data refers to control by the subject over the processing of her data (Oostveen &
Irion, 2016; Rengel, 2014). The key tool for a legal control of personal data is the
subject’s consent to the processing (Tene & Polonetsky, 2013: pp. 260-263; So-
love, 2013: p. 1894; A29DPWP, 2011).
The European lawmaker recently regulated the protection of natural persons
with regard to the processing of personal data and the free movement of such
data (GDPR), and in this Regulation, took into account these aspects of control
(Recitals (7) and (68) of GDPR) and legislated that the previous subject’s consent
shall be a necessary prerequisite for the lawfulness of data processing (Article
6(1)(a) of the GDPR). In particular, under the GDPR, the collection and
processing (Article 4(2) of the GDPR) of personal data shall be lawful if the data
subject has given consent to the processing of his or her personal data (Recital
(4) and (42) of the GDPR) for one or more specific purposes (Article 6(1)(a),
Recital (32) of the GDPR). Moreover, “consent” of the data subject means any
M. Bottis, G. Bouchagiar
10.4236/ojpp.2018.83014 195 Open Journal of Philosophy
freely given, specific, informed and unambiguous indication of the data subject’s
wishes by which he or she, by a statement or by a clear affirmative action, signi-
fies agreement to the processing of personal data relating to him or her (Recitals
(42), (43), Articles 7(4), 4(11) of the GDPR).
One would assume, therefore, that a “single mouse-click” on any privacy pol-
icy’s box, by which users may give their consent, should not be considered to
fulfill the criterion of “freely given, specific, informed and unambiguous” indica-
tion of the data subject’s wishes by which the individual has to signify agreement
to the processing. Quite the opposite is true: under Recital 32 of the GDPR, con-
sent can also be given by “ticking a box, when visiting an internet website” (the
repealed Directive 95/46/EC makes no mention of the capacity to give consent
simply by ticking a box).
Thus, the data subject’s consent to the collection and processing of her per-
sonal data may be validly and lawfully given by a single “mouse-click” on the box
reads (Turow, Hoofnagle, Mulligan, Good, & Grossklags, 2006: p. 724; Pingo &
Narayan, 2016: p. 4; Gindin, 2009; Chesterman, 2017). Given that, as docu-
mented, in most cases the users “generously click” on any box that may
“pop-up” (Vranaki, 2016: p. 29), private enterprises legally (and with individu-
al’s “freely given, specific, informed and unambiguous” wishes) process (e.g.
collect, record, organize, structure, store, adapt, alter, retrieve, consult, use, dis-
close, disseminate, make available, combine, restrict, erase or destroy) personal
3. Anonymizing Data: A Failure?
In several cases, after having collected personal data, firms anonymize them.
This means that “effective” measures are taken and data are further processed in
a manner which renders the re-identification of the individual impossible (Hon,
Millard, & Walden, 2011; Stalla-Bourdillon & Knight, 2017). Anonymization
constitutes further processing (A29DPWP, 2014) and always comes after the
collection of data. Hence, given the legislated validity of consent that users have
already given often by a single “mouse-click”, companies may legally anonymize
their collection of personal data. Anonymized (ex-personal) data can be freely
used e.g. shared with third parties, sold etc as the rules of data protection do not
apply to “personal data rendered anonymous in such a manner that the data
subject is not or no longer identifiable” (Recital (26) of the GDPR).
But in the age of Big Data, there is probably no safe way to render personal
data truly anonymous (Scholz, 2017: p. 35; Schneier, 2015: pp. 50-53). Even after
“anonymization”, the data subject remains technologically identifiable (Ohm,
2010: p. 1701; Sweeney, 2000; Golle, 2006; Gymrek, McGuire, Golan, Halperin,
& Erlich, 2013; Bohannon, 2013; Narayanan & Shmatikov, 2008). The inability
to anonymize personal data in a Big Data environment is due to the collection
and correlation of a huge volume of data from multiple sources. The result is the
possibility to draw “countless conclusions” about an individual, who may be
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10.4236/ojpp.2018.83014 196 Open Journal of Philosophy
identified, directly or indirectly (Tene & Polonetsky, 2013: p. 257; Cunha, 2012:
p. 270). In other words, anonymization can only be achieved in “Small Data” en-
vironments, given that the volume and the variety of data processed in the world
of Big Data, facilitate and encourage (re)identification of any individual (May-
er-Schönberger & Cukier, 2013: p. 154).
We see, therefore, the anonymization of personal data, in a Big Data envi-
ronment, portrayed as a failure. The same technology, which reassured us that
we could not be identified, and so our personal data could be used for some
noble purposes as, for example, medical research, now betrays us. A huge data
set is almost magically, and reassuringly, turned anonymous, and then, adding a
piece of information or two, it is turned back, some point later in time, to full
identification (De Hert & Papaconstantinou, 2016: p. 184). If this is the case,
where is our consent in this situation? A “single click” consent to this processing
is from the outset pointless. The very specific purpose of the processing for
which the individual has to give her initial consent has often, at the time of
“mouse-click”, not even been decided yet by the firm who is the controller
(Mayer-Schönberger & Cukier, 2013: pp. 152-153; Giannakaki, 2014: pp. 263-264).
Thus, when users in fact ignore the final purpose (Steppe, 2017: p. 777;
A29DPWP, 2008) for which consent is given (Bitton, 2014: p. 13), it is fair to
support that they have lost control over their data (Solove, 2013: p. 1902). If no
genuine consent can be given and if anonymization is indeed practically im-
possible, then there is no control at all (Carolan, 2016; Danagher, 2012). But this
loss of control contrasts strongly with the goals and principles of the constitu-
tional, in Europe, right to the protection of personal data. It defeats the
of all previous European legislation on data protection all the way since
4. Knowledge and the Fundamental Right to
Although the right to the protection of personal data is fundamental, probably
not many people are aware of this right and much fewer have been documented
to exercise powers which this right gives them (O’Brien, 2012; Hill, 2012). That
people fail to exercise their rights or do not care about their personal data does
not mean that this “apathy” should be “applauded” (Tene & Polonetsky, 2013: p.
263). A very important reason why it should be required that individuals dem-
onstrate greater interest in their data protection, is that control over the
processing of personal data enables the data controller to know (May-
er-Schönberger & Cukier, 2013: pp. 50-61; Cohen, 2000: p. 402).
In fact, in the Big Data environment control over the processing of personal
data enables any firm to build its own “private networks of knowledge” (Powles
& Hodson, 2017). These networks can lead, or perhaps has already led, to the
accumulation of power, a power to an unprecedented extent and nature, resting
in “private hands”. This power may undermine the fundamental right to equality
and non-discrimination (Article 21 of CFREU). As early as in 1993, Gandy
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spoke of a digital environment, where databases profiled consumers and sorted
them into groups, each of which was given different opportunities (Gandy,
1993). Some years later, other scholars (Gilliom, 2001; Haggerty & Ericson,
2006) built on Gandy’s theory and explained the manners in which new, at the
time, tools and datasets were used by governments and private companies alike,
so as to sort people and discriminate against them. Today, as these authors ar-
gue, private enterprises focus on human beings and study users’ behaviors or
movements or desires, so as to “mathematically” predict people’s trustworthi-
ness and calculate each person’s potential as a worker, a criminal or a consumer.
“Private algorithms”, which process users’ data, are seen as “weapons of math
destruction” that threaten democracy and the universal value of equality (O’Neil,
2016: pp. 2-3, p. 151).
Today’s “free” Internet is paid for mainly by advertising, for the needs of
which tons of personal data are collected (Richards & King, 2016: pp. 10-13).
Processing of these data with the help of cookies enables firms to identify the
user and detect her online or even offline activities (Lam & Larose, 2017; Snyder,
2011). Thereafter, the user’s data are used by private parties, to profile (Article
4(4) of the GDPR) people, to create “target groups”, to which personalized ads
may target the correct consumers (Förster & Weish, 2017: p. 19). In the Big Data
environment, profiling or sorting consumers into groups may indeed be ex-
tremely effective. But the line between a legal sorting and profiling in favor of
private interests and an unlawful, as contrary to the principle of equal treatment,
discrimination based on personal data collected is blurry (Gandy, 2010; Article
21(1) of CFREU). It is also alarmingly disappearing, as users are being discrimi-
nated against on grounds of their personal data, not only during advertising, but
in general, while private companies provide any services or just operate, by ana-
lyzing the users’ data and “training their machines” (Mantelero, 2016: pp.
239-240; Crawford & Schultz, 2014: pp. 94-95, p. 98; Veale & Binns, 2017; Has-
tie, Tibshirani, & Friedman, 2009).
Given the correlations that Big Data allows and encourages, any private com-
pany that knows, for example, a user’s gender, or her origin or her native lan-
guage, may discriminate against her (Boyd & Crawford, 2011; Panagopou-
lou-Koutnatzi, 2017). This can happen by sorting or profiling, not only on the
grounds of this information, but also on the grounds of other multiple personal
data (Tene & Polonetsky, 2013: p. 240), which the private party may find by
combining a huge volume of data, such as the exact address, where the user lives,
or even the information that a consumer suffers from diabetes or that she is the
mother of three minors (O’Neil, 2016: pp. 3-5, pp. 130-134, p. 151; Rubinstein,
2013: p. 76). Hence, a private company can use these data to create a system that
will sort people into lists, put the most promising candidates on top, and “pick”
the latter to fill the vacant posts in the company (O’Neil, 2016: pp. 3-5, pp.
To sum up, sorting or profiling by “private algorithms”, in favor of private in-
terests and at the expense of people’s fundamental right to equality and
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10.4236/ojpp.2018.83014 198 Open Journal of Philosophy
non-discrimination, analyzing and correlating data so as to project the “perfect
ad” (See A29DPWP, 2013: p. 46) or promote the “appropriate good” at the “ap-
propriate price” (Turow & McGuigan, 2014; EDPS, 2015: p. 19) or predict crim-
inal behaviors (Chander, 2017: p. 1026) or “evaluate” the accused before sen-
tencing courts (State v. Loomis, 2016), all these actions place almost insur-
mountable barriers in regulating the processing of personal data (Crawford &
Schultz, 2014: p. 106). Knowledge and power seem to be accumulated in the
hands of private entities in violation of people’s fundamental rights. Firms may
or do dictate “privacy policies and terms of processing of data”, in conjunction
with the continuous ticking of boxes with users’ eyes closed (Manovich, 2011).
This reality calls for solutions that will enable people to regain control over their
personal data-over themselves (Mitrou, 2009).
By processing personal data, several economically and socially useful purposes
have been achieved (Manovich, 2011; Prins, 2006: pp. 226-230; Knoppers &
Thorogood, 2017). The processing of Big Data is even more promising. At the
same time, however, the lawfulness of mass-processing of personal data in the
Big Data environment is being questioned by many scholars. Although it is very
important to examine this lawfulness in each emerging program or software,
during the use of which consent is “grabbed by a mouse-click”, it is much more
important to understand the real conditions of this personal data processing,
which many of us experience every day—or almost all of us experience many
times each and every day.
The mass collection of personal data in an environment in which people do
not meaningfully participate, in a setting of possibly opaque and discriminatory
procedures (to predict, for example, people’s behavior in general via the use of
an algorithm, and then apply this prediction to a particular person), should
concern all of us deeply. This is especially so, when people cannot know the
purpose or even, ignore the very fact of processing and, hence, never give their
consent in any meaningful way. The “consent fallacy” (i.e. the inability of the in-
dividual-websurfer to form and express free, conscious and informed choices,
Mitrou, 2009: p. 466; Mitrou, 2017: p. 77) is accentuated at the highest possible
degree. The processing of massive amounts of personal data, in combination
with the accumulation of knowledge and power in “private networks” in viola-
tion of fundamental right to non-discrimination calls for a new progressive ap-
proach to legal provisions that protect personal data, and also, for the develop-
ment of new technology inserting privacy protection in the very design of in-
formation systems dealing with Big Data (De Hert & Papaconstantinou, 2016).
The European legislator with the General Data Protection Regulation made a
significant effort to protect people’s rights on their personal data. Simultaneous-
ly, firms constantly devise and/or use new technologies of data-processing. This
brings back to the discussion table some older academic opinions (Samuelson,
2000) that view commodification of personal data as a potential way, or even the
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only way, to regain control (Malgieri, 2016). Such an approach, hotly debated,
falls outside the purposes of this paper but will be discussed in our future work.
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