Protecting Children from Data Profiling through the Principle of Forgiveness

Karolina La Fors – Centre for Law and Digital Technologies, Leiden University

-- 30 years after the United Nations Convention on the Right of the Child (CRC) and two years after the new EU data protection regime, the social value of forgiveness lacks from these legal instruments. The unprecedented global terrain-wining of AI technologies in government practices and their implications on vulnerable groups have shown that these technologies can amplify negative predictive judgements and potentially result in unjust exclusions.

Therefore, in my recent article entitled: "Legal Remedies For a Forgiving Society: Children's rights, data protection rights and the value of forgiveness in AI-mediated risk profiling of children by Dutch authorities," published in Computer Law and Security Review (June 2020), I make a case for addressing the lack of forgiveness within these legal instruments and the lack of research on the subject of forgiveness in relation to improving the legal position of children. When children are exposed to artificial intelligence (AI)-mediated risk profiling by Dutch government authorities incorporating the value of forgiveness requires urgent addressing, because as developmental psychologists argue: the erosion of this value could hamper children's ability to develop flourishing human relationships.

This article investigates how forgiveness can be enforced in order to benefit children below the age of 12 years that are exposed to risk profiling by Dutch law enforcement and youth care authorities. Children who are victims, witnesses, or falsely accused provide the particularly narrow of focus in this article because these groups cannot be held responsible for their correlations to crime. Furthermore, strengthening children's legal treatment is crucial because their position is much weaker than adults when it comes to disputing a risk correlation applied to themselves. The article argues, that these children correlated to crime not only can feel unjustifiably punished, ‘unforgiven’, and hampered in their choices, but can also develop low self-worth and (negative) judgmental attitudes towards others.

Based on input from developmental psychology, empirical material, and legal desk research the article addresses the questions:

  • What remedies can the Law Enforcement Directive (LED) 2016/680, the General Data Protection Regulation (GDPR), and the United Nations Convention on the Right of the Child (CRC) offer to mitigate the detrimental implications of risk profiling children by the ProKid 12- SI system and the Crime Anticipation System (CAS) in The Netherlands?

  • How can the social value of forgiveness strengthen these instruments and the legal position of children in light of security interests and the best interests of the child?

By answering these questions, the analysis highlights the power of forgiveness versus such other traditional principles in law concerning AI as fairness and non-discrimination. It argues that both the concept of fairness and discrimination allow for the distribution of negative judgments or determinations on citizens so long as these determinations are proportionate. On the contrary, forgiveness, if enforced, has the potential of nullifying and remedying the distribution of negative determinations and benefit risk-profiled children. The article reaches the following conclusions:

  • because the concept of risk-profiling is correlational and forgiveness is a relational one, solutions can only emerge from the reconciliation of these two;

  • the CRC offers the broadest room for incorporating the principle of forgiveness into balancing tests;

  • certain LED and GDPR prescriptions could facilitate the value of forgiveness for children, such as the right to erasure;

  • predicting harmful effects of AI-mediated risk profiling on the individual lives of children are difficult to anticipate. Inspired by Wachter and Mittelstadt’s the right to reasonable inferences, for the case of children the value of forgiveness shall rather be translated into a children right to remedy unreasonable inferences which focuses on provable harms as effects. The value of forgiveness shall be included under the CRC as an added principle because it would support beyond the best interest of the child all CRC principles; and

  • incorporating the value of forgiveness into the legal instruments would not only benefit individual children but also public safety as a result. This is so, because as psychologists highlight the practice of forgiving concerning children highly cultivates their own self-belief of being unconditionally lovable and worthy as well as their similarly positive perception of others.

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