Foreseeability and the Rule of Law in Data Protection after the PNR judgment

Abstract

The rule of law cannot be reconciled with the existence of secret laws, unclear laws and laws which cannot be obeyed. However, this may be difficult to realise in practice, where full transparency is at odds with the legislative goals; where a certain degree of flexibility of rules is necessary to address changing circumstances, in which these rules function; and where a disconnect occurs between the visions of the lawmaker and reality created by modern technologies that are utilized to pursue them. The CJEU’s ruling in Lige des droits humains on Passenger Name Record Directive underscores the difficulty of foreseeability of algorithmic measures and the rule of law.

Keywords

• data protection, gdpr, general data protection regulation, Machine Learning, passenger name record, PNR, privacy, security