While state privacy statutes in the United States scheduled to go into force in 2023 and modern European privacy regulations adopt a similar definition of “profiling,” the term has yet to judicially interpreted or applied in the United States. Within Europe, the Article 29 Working Party took the position that for an action to constitute profiling three elements must be met:
- An activity must involve “an automated form of processing;”
- An activity must be “carried out on personal data;”
- The objective of the activity must be “to evaluate personal aspects about a natural person.”1
Based upon the above elements, the Working Party stated that if an organization (e.g., a data broker) automatically places individuals into segments and then uses such information (directly or by selling it to a third party) to improve “targeting of . . . goods and services” then the organization has engaged in profiling.2
1 WP 251, Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679, adopted on 3 October 2017.
2 WP 251, Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679, adopted on 3 October 2017 at 7.