A regulação do profiling na lei geral de proteção de dados: o livre desenvolvimento da personalidade em face da governamentalidade algorítmica

Abstract

The use of automated personal data processing techniques to assess and predict human behavior is gaining increasing scale, and the literature identifies threats to the preservation of human autonomy when subjects are affected by them. We seek to understand how these techniques, especially profiling, represent structural threats by incorporating assumptions that make human agency obsolete and impede the subjectivation process in automated decision-making situations. From this, we propose an epistemological basis for the principles of the free development of the personhood and informative self-determination, centered on the idea of protecting the construction of personal identity, supporting the proposed interpretation of the right to privacy as a power of self-identification. At the end, the provisions of the Brazilian General Data Protection Law were analyzed to identify its collective dimension of protection and the centrality of the interests of the data subjects, as opposed to identification as a central normative element, as pillars that regulate profiling in the Brazilian legal system. As a result of the research, three mandatory duties were proposed for treatment agents who wish to use profiling techniques: a substantive protection from the due informational process and the right to reasonable inferences as a way to regulate the results generated by the automated treatment; a dialogic duty based on the right to explanation and, finally, carrying out impact assessments as a materialization of the accountability duty and key to public scrutiny of the use of technologies that generate risks to fundamental rights.