Data Mining and Profiling in the Area of Freedom, Security and Justice: State of Play and New Challenges in the Balance between Security and Fundamental Rights Protection

Abstract

This article analyses the impact of the use of data processing mechanisms (i.e. data mining and profiling) as investigative tools on the fundamental rights of individuals. It highlights the pressing need to achieve a fair balance between social security and individual's freedoms when data processing mechanisms are used in criminal investigations, providing for a set of limits to ensure the necessary protection of fundamental rights of individuals, without frustrating investigation exigencies. In this respect, the article examines the current EU legislation and the new proposals under discussion concerning the protection of privacy and data protection at the EU level, the relevant case law of the European Courts (CJEU and EctHR) and the general tendencies in the Member States' legislation, in order to build up an ‘integrated table’ of constraints, particularly useful for the European legislator in the adoption of common legislation at the EU level. The article also stresses the crucial role of the CJEU in achieving the above mentioned balance between investigation needs and individuals' rights protection, especially after the entry into force of the Lisbon Treaty and the explicit recognition of the binding nature of the Charter of fundamental rights of the European Union providing for an express provision on data protection. The authors nevertheless point out the remaining prominent role of the ECtHR in protecting fundamental rights at the supranational level, because of some persisting limitations to the competence of the CJEU in AFSJ matters, and the perspective of enhancement of fundamental rights protection at EU level following future EU accession to ECHR.