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Insurers underwrite risks: they calculate risks and decide on the insurance premium. Insurers seem captivated by two trends. (i) First, insurers could use AI for analysing more and new types of data to assess risks more precisely: data-intensive underwriting. (ii) Second, insurers could use AI to monitor the behaviour of individual consumers in real-time: behaviour-based insurance. For example, some car insurers offer a discount if the consumer agrees to being tracked by the insurer and drives safely. While the two trends bring many advantages, they may also have discriminatory effects on society. This paper focuses on the following question. Which effects related to discrimination and unfair differentiation may occur if insurers follow data-intensive underwriting and behaviour-based insurance?

Organisations can use artificial intelligence to make decisions about people for a variety of reasons, for instance, to select the best candidates from many job applications. However, AI systems can have discriminatory effects when used for decision-making. To illustrate, an AI system could reject applications of people with a certain ethnicity, while the organisation did not plan such ethnicity discrimination. But in Europe, an organisation runs into a problem when it wants to assess whether its AI system accidentally discriminates based on ethnicity: the organisation may not know the applicants' ethnicity. In principle, the GDPR bans the use of certain 'special categories of data' (sometimes called 'sensitive data'), which include data on ethnicity, religion, and sexual preference. The proposal for an AI Act of the European Commission includes a provision that would enable organisations to use special categories of data for auditing their AI systems. This paper asks whether the GDPR's rules on special categories of personal data hinder the prevention of AI-driven discrimination. We argue that the GDPR does prohibit such use of special category data in many circumstances. We also map out the arguments for and against creating an exception to the GDPR's ban on using special categories of personal data, to enable preventing discrimination by AI systems. The paper discusses European law, but the paper can be relevant outside Europe too, as many policymakers in the world grapple with the tension between privacy and non-discrimination policy.