In fact, despite the continuous focus by Member States on identification of victims, the number of identified victims remains low, and many governmental and non-governmental stakeholders report that generally identification of victims remains problematic, so that trafficking broadly remains an ‘invisible crime’.9
In addition, the UNODC has been mandated by the UN General Assembly to issue global reports on trends and patterns of human trafficking.10 In the UNODC reports, however, only percentages are used, which makes it difficult to compare the data with similar global reports.
‘Big Data’
In the arena of crime prevention, Big Data has become a promising tool to combat and detect crime on the spot, and in real-time, by using predictive policing software. It allows law enforcement agents to combine different law enforcement, intelligence, and other data sets from the past with the help of elaborate software systems. The envisaged outcome is to anticipate crimes, and to depict crime as it happens.11
Big Data policing tools are based on an integrated system that includes huge volumes of data sets, including non-intelligence-related data. It is based on the assumption that machines will be able to read patterns, trends, and behaviour by combining data sets that every individual produces in using digital technologies.
In 2013, three global data enterprises, Palantir, Google, and Salesforce, started co-operation with the US-based anti-trafficking NGO, Polaris; the European NGO network, La Strada International; and the NGO, Liberty Asia, in order to transform data from existing anti-trafficking hotlines into a global database displaying both trafficking routes and supporting infrastructure for victims in a real-time mapping.12
It’s the power of using big data to understand trafficking networks where the second part of Palantir’s technology comes in: the ability to discern patterns in human trafficking so real-world resources such as law enforcement initiatives, government legislation, and NGO field work can be better allocated to fight it.13
The possible risk of turning very sensitive personal data into a global tool of Big Data (and of Real Time Data) is being addressed by introducing a multi-layered system into the data collection tool that allows only the primary data collector, which is the NGO service provider, to have access to the personal data of the presumed victim:
In order to share mass amounts of useful data responsibly, the trick is in empowering organizations to share subsets of that data, … And that’s exactly what Palantir’s technology does: It allows big data to be shared through a very granular security model.14
It can be argued, in general, that data security based on technology seems to be a fragile undertaking, given the revelation by Edward Snowden of major governmental access to private communication flows. A more concrete critique, though, should be drawn from the fact that NGO service providers are invited to confide their clients’ sensitive information to a complex global digital information architecture that they neither control nor facilitate.
The contested division of mandates becomes blurred between intelligence-related data to assist the prosecution of a crime, on the one hand, and the information gathered in confidential counselling to overcome the victim’s trauma caused by a violent crime, on the other. Consequently, global data industries stepping in as neutral stakeholders (providing solely the infrastructure for data management systems) seem to design not only new formats of tracking and illustration of a complex crime, but also to reorganise the roles of law enforcement and civil society as data providers.
Data formats, data politics, and human rights
Even though there are different methodologies and formats to collect data on human trafficking, as illustrated above, some similar assumptions are shared by all of those data collectors and interpreters. One common view is that there is a current lack of data on human trafficking, and that this needs to be addressed. Even though there is no specification of both the quality and the purpose of data that needs to be generated, the notion remains in all data collection narratives that if ‘more and better’ data has been collected, a significant step has been taken to combat human trafficking.
Another obvious common argument for the depicted data collector tools is the supposition that the victim of trafficking is the centre of all data collecting endeavours: their numbers are being assessed; their information from national hotlines is being stored and shared; and their demographic and personal information is systematically assessed. Moreover, anti-trafficking data collection tools are mainly based on the identification of victims by the authorities, rather than – as a criminological framework would suggest – the identification of perpetrators. Data collection tools such as the ICMPD’s ‘Handbook on anti-trafficking data collection and information management in the European Union’ offer a ‘[t]able of proposed sets of harmonised indicators/variables’: six indicators for recording the personal background of alleged perpetrators, while the presumed victim’s personal data embraces 14 indicators.15
This is in stark contrast to other criminal narratives, including anti-terrorism measures that focus solely on potential and suspected perpetrators as the driving force of the crime. Estimating global numbers of traffickers and facilitators of forced labour or slavery-like practices is not in the spotlight of global trafficking discourses. The victim of trafficking, be that person a registered/identified victim or a potential/presumed victim, is at the core of global datafication. This is the more astounding as the mainstream literature suggests that victims of trafficking are a very heterogeneous group, and can therefore not provide an easily identifiable profile.16
The high number of estimated victims to be found in forced labour or slavery-like practices globally – as documented above to vary between 20.9 and 45.8 million people – while being regarded as an empirical tool to raise awareness, may also alert governments and the general public to the need for immediate action. This sudden crisis facilitates the adoption of a securitised approach to trafficking, at the expense of existing legal regimes for data protection and other measures: more and more lists of indicators to identify victims are produced; surveillance technologies are applied; and even the international transfer of presumed victims’ personal data is activated.17 As a consequence, the extent of governmental and inter-governmental administration of trafficked persons is understood as a threat to public security, and as a severe human rights violation.18 Since governments focus their efforts, to a large extent, on identifying possible and de facto victims, the often quoted ‘victim-centred approach’ in anti-trafficking strategies – mainly referred to as a synonym for a ‘human rights approach’ –acquires an ambiguous meaning, focusing on the victim as a risky subject who needs to be at the centre of governmental administrative activities.
In order to introduce the principles of human rights into data politics, Claudia Aradau instigates the notion of ‘knowing responsibly’ –being transparent about the justification for data collection:
It seems to me that the challenges in relation to anti-trafficking concern how to know responsibly rather than simply the postulation of knowledge at all costs, and in particular, how to know in ways that are not destructive of freedom and human dignity. One path I suggest is to start from knowledge as situated and analyze the ways in which this knowledge might be ignored or rendered uncertain. Secondly, we need to get rid of the fantasy that there is such a thing as ‘raw’ data, nor there is any such thing as innocent data. Moreover, human rights have only limited efficacy against the logic of statistical data processing and preventive risk management. What is important is to make the ways of reasoning about data visible – dispel the secrecy in processing of data in order to create conditions for the exercise of human rights.19
Aradau raises two important issues worthy of further consideration. First of all, how can we overcome the hierarchal and potentially risky power relations between data subjects and data processors; and, secondly, do human rights principles provide a strategy to contradict data collection procedures that strengthen the security p
olitics narrative framework of trafficking?
For instance, existing data collection procedures do not include data on global economic inequalities, or information on anti-discrimination policies targeted at migrants, as human rights interventions would suggest. Moreover, existing data tools fail to provide information about the victims’ access to justice, including their right to compensation, residence rights, or their social and economic rights. Thus, the criminological framing of data collection tools remains predominant in the discussion on trafficking, despite the human rights rhetoric.
When it comes to Big Data and the software applications provided by global surveil-lance industries, as illustrated in the co-operation of Palantir and Polaris, yet another layer of consideration needs to be touched upon: namely, the digital code that shapes the logic of displaying social phenomena. Evgeny Morozov criticises the culture of ‘solutionism’ inherent in digital applications based on binary codes:20 not only may the definition of a ‘problem’ fall short of a more complex reality, there is an absence of public debate about where the problem is; thus, the ‘solution’ offered is, accordingly, short-sighted.
Paul Currion seconds the discomfort at the utilisation of military-industrial software technologies, like Palantir, in order to suggest interventions for global humanitarian aid:
Technology is often viewed as neutral, and it’s marketed to us like that…. When it comes to software, there are assumptions built into code…. The assumptions of the intelligence community are not … our assumptions…. Humanitarian principles … should translate into a concern about military-industrial surveillance and its providers.21
Using Big Data technologies to assess the crime of trafficking or other socio-criminological phenomena is never a one-way street. Processing data, including personal data about presumed victims, into globally applied software clouds contributes to an accumulation of yet new data sets that can be endlessly combined with unrelated data and interpreted in different contexts. Thus, the power of surveillance of every individual is growing without the possibility to control the data and its interpretation, as the providers and owners of these software applications are both private businesses and governmental security and intelligence organisations.
This leads to a last concern: the role of governments in data collection and storage procedures in the digital age. As the cultural scientist Cornelia Vismann clear-sightedly stated as long ago as 2004, the State – which used to have the monopoly of information about its citizens stored and governed in its bureaucracy and archives – has become only one of many co-competitors in collecting and storing information and data, including many private companies.22 Consequently, governmental collection and monitoring tools on human trafficking, such as National Rapporteur Mechanisms, offer just one among many opportunities to define the qualitative and quantitative scope of trafficking, and to recommend anti-trafficking policies. The power of defining trafficking (and its intervention) is, therefore, allocated to many different stakeholders and global players. While the role of a government in global data politics may still be valid as a regulatory authority for the global data flow, its executive power remains bound within the national territory, and thus is very limited.23
This means that the role of government to be held accountable for human rights protection, including privacy rights, is restricted, too. Using global software tools to store personal data on human trafficking leads to the uncertain realm of data protection implications. Traditionally, under EU law, every individual can exercise their rights as a data subject to obtain access to their file, to rectify the content, and to withdraw their consent to the storage of their personal data.24
Data protection as a human rights strategy to restore privacy of trafficked persons?
This section explores whether data protection is an effective strategy to protect the privacy rights of trafficked persons against surveillance carried out by governmental, inter-governmental, and private stakeholders.
Data protection has been recognised as a purely technical tool to protect data, mainly in the digital realm. The impact of data protection for the human rights culture has been underestimated, mainly in its understanding that data protection is not about protecting data, but protecting individuals against arbitrary State interventions.
Historically, data protection and privacy rights were first conceptualised in the nineteenth century, by Samuel Warren and Louis Brandeis, as a right of the individual to be ‘let alone’ by State authorities. After the experiences of the totalitarian Nazi regime in the twentieth century in Europe, during which populations were administratively categorised, registered, persecuted, and murdered, data protection and privacy rights became an important issue for the new social movements in the second half of the century.25 Their concern to prevent a future surveillance State was reflected in the major European data protection legislation.26 It limits the gathering by the State of knowledge about individuals to basic information. It was no longer legal for governments to register individuals as members of marginalised groups, including ethnic groups, trade unions, religious groups, and on the basis of their sexual life (Art. 8). Thus, data protection law is regarded as a strong intervention against State and social stigmatisation of individuals.
In recent years, European NGO networks La Strada and KOK took an initiative to strengthen privacy rights of trafficked persons, and to introduce data protection tools for anti-trafficking counselling centres.27 The idea of a ‘right to be let alone’, for trafficked persons, has been translated by broad NGO consultative procedures into the following recommendations:
[A] nti-trafficking measures should clearly define the purpose of data collection once it is made a condition to access support structures. The purpose should be based on legitimate interest. The processing of personal data is dependent upon the free and informed consent of the data subject, in this case the trafficked person.28
The collection of trafficked persons’ personal data should be minimised to the absolute necessary limit. The purpose of data collection should be deliberated and harmonised with existing European and national data protection provisions.29
Personal data … collected for specific internal purposes should not be stored for any other purposes nor shared with external or other third parties: ‘What is nice to have is not necessarily legitimate to have’.30
Any transfer of trafficked persons’ personal data across national borders should be avoided.31
All stakeholders should have security measures in place to prevent tracing the identities of trafficked person[s] after return and inclusion[/reintegration] procedures.32
Establishing secure IT soft-and hardware in NGO counselling centres [should be] based on a Privacy Impact Assessment (PIA).33
Advocating for stronger protection of the obligation to confidentiality and the right to refuse to give evidence in court.34
Introducing counselling modules on the right to privacy.35
Conclusion
Trafficked persons do not always come forward to declare themselves as having been trafficked. This may be due to an irregular status, or their reluctance to report the crime because of fear of reprisals by the perpetrators, or to the social stigma of being a victim of a crime with highly sexualised connotations. In addition, many European State authorities set certain conditions on the access to support structures for presumed trafficked persons.36
While victims of other violent crimes, including violence against women, are not required under European and international legislation to be identified by ‘competent authorities’ in order to have access to support structures and protection, trafficked persons have to first convince officials about their status as a victim of a crime before receiving appropriate help.
The system of identification as a qualification to access support structures poses challenges to human rights, including privacy rights. When trafficked persons are confronted with an extensive bureaucratic process, they have almost no opportunity to receive such services as co
unselling anonymously. Even if a trafficked person does not want to press charges, or to co-operate with law enforcement agencies, in order to have access to assistance, he or she will be registered by the national authorities during the identification process.
Anti-trafficking data collection tools have proved to be an instrument of attributing and labelling of individuals. Trafficked persons are being categorised, registered, assessed as vulnerable and a risk threat, and thus administered under a tight security regime that may restrict their freedom of movement, their right to participate in public life, and their right to be protected against discrimination.
The universal idea of human rights, however, is designed to protect the individual against governmental attributions and applications of specialised regimes, as Vismann indicates:
The human being, as the gap in the law, declares him-or herself by speaking up. Defining the ‘human being’ –which is not a legal term for good reasons – is therefore part of the discourse generating project of human rights. The human being has almost a mathematical function by taking on all names that are given to him or her. Human rights are like a discursive filter, transcending all imaginations, versions and images of a human being. He or she can be everyone and everything: the individual or collective, biologically defined specie or in his or her attribute to form a nation …37
Routledge Handbook of Human Trafficking Page 82