Citizens are getting lost in data processing jungle
What can a citizen do when public authorities use their personal data to make a decision they contest? Fatma Çapkurt conducted PhD research on the topic. Citizens should be more aware of how their data is processed.
In her dissertation, Fatma Çapkurt explains that much has changed in the relationship between citizens and government in the Netherlands. Digital technology provides more and more data that the government gladly uses. Smartphones, Wi-Fi trackers, smart cameras, sensors and microphones in public spaces all collect data on citizens. The government then uses this data to make administrative decisions. Increasingly, this is done using artificial intelligence.
Blacklist
‘The government can draw up a profile on you based on data held by an administrative authority, without you even being aware of this,’ Çapkurt says. ‘This can lead to unlawful decisions, like those that occurred in the child benefits scandal. Or the government can blacklist you, without a decision having been made, because you are seen as a fraud risk.’
Her dissertation cites many examples, such as the risk profiling with which DUO (the Education Executive Agency in the Netherlands) determined whether students had wrongfully received a grant for living away from home. Or that the municipality of Rotterdam used an algorithm to calculate the probability of welfare recipients committing fraud. Profiling by the Dutch Tax Administration also wrongly placed people on a blacklist. Government authorities could also request photographs of car number plates and use them to check whether drivers were legitimately using a corporate lease vehicle.
Distorted balance of power
‘A power imbalance exists between government and citizens by definition,’ Çapkurt explains. ‘The digitalisation of public administration reinforces this imbalance. Citizens are becoming increasingly transparent to the government, which reinforces its information position. Citizens, however, are unable to check how the government handles their data. This has to change.’
Given her extensive experience in public administration, Çapkurt knows all about data processing. She is currently working as an associate professor at the Department of Constitutional and Administrative Law at Leiden University. She is also vice chair of the Personal Data Committee Amsterdam, a member of the Central Committee on Data Use at the Ministry of the Interior and Kingdom Relations and a member of the Police Ethics Committee. Between February 2023 and June 2024, she also served as a member and deputy chair of the government committee on the Rule of Law.
It's worrying that there's so little regard for data protection in administrative law in the Netherlands
Citizens overlooked by the system
Fatma Çapkurt started working on her dissertation in August 2018, three months after the General Data Protection Regulation was introduced. ‘It's worrying that there's so little regard for data protection in administrative law in the Netherlands. A lot of information is exchanged between citizens and administrative authorities, but also between the administrative authorities themselves.’
Her research revealed that European rules on data processing and Dutch administrative law are not yet properly aligned. As a result, citizens are being overlooked by the system. They don’t know where to turn when they challenge a decision that was taken on the basis of their data.
Legal recourse
One example of this is what is called the ‘Treiteraanpak’ in Amsterdam, a method to tackle severe cases of harassment and intimidation by citizens, Çapkurt explains. On the basis of data processing, people who cause severe nuisance through their behaviour receive a letter from the municipality announcing how this will be dealt with. But when these alleged harassers object to the municipality’s approach, they assume they have to do so before the administrative courts. Their challenge under administrative law then proves unsuccessful. Due to the data processing involved, it should have been made through the procedures set out in the relevant regulation.
Çapkurt: ‘The problem is that citizens are generally unaware of this legal recourse. The government and the administrative courts fail to fully inform them of this, effectively denying them access to legal protection. A very bad situation.’
With her thesis, Çapkurt has tried to offer insights into how citizens can challenge the administrative processing of their data. ‘But I also realise that this is only the beginning of legal developments that I hope will continue in the coming years.’
Jan-Willem Oomen
Photo by Chris Yang on Unsplash