It has been a busy time in ‘data’. In September 2020 the Department for Digital, Culture, Media and Sport (DCMS) published the UK National Data Strategy. The document sought to position the ‘UK as a global champion of data use’ (NDS, September 2020 p. 3). In June 2021 the Taskforce on Innovation, Growth and Regulatory Reform (TIGRR) published a set of recommendations for how the UK, now out of the EU, could reform some aspects of the General Data Protection Regulation (GDPR). Then, most recently, in September 2021 the government published Data: a new direction – a 146 page consultation comprising five areas of data protection reforms, each with various proposals and accompanying questions to guide consultation responses.
That period of consultation ended on Friday 19 November 2021. This post captures some of the work undertaken by the Privacy and Consumer Advisory Group (PCAG) and the Open Rights Group in organising a roundtable discussion of the proposals, delivering a ministerial briefing and a comprehensive consultation response. It also outlines some of the key issues raised at the roundtable, reflected in concerns raised by the wider data protection community in posts and papers from Chris Pounder, David Erdos and Gavin Freeguard amongst many others. This post also highlights further issues connected to my own research interests: questions of value from and value to in the ‘data economy’.
A period of consultation
Consultations as a political process can be understood in various ways. Recent research into how consultation participants view the process highlighted two key purposes: epistemic (producing informed and considered policy) and democratic (enabling stakeholder participation in policy) (Edwards and Moss, 2021). Hence the structure of consultations – from how documents are framed and which questions are asked, to how proposals are justified and how stakeholder engagement is managed – all have an impact on the shape of consultations and their function as tools of policy-making and enactments of democracy.
The Data: a new direction document lays out the government’s proposed reforms to data regulation and was published in the context of a now accepted orthodoxy that data has become ‘the world’s most valuable resource’ (The Economist, 2017). In acknowledgement of the fact that, actually, the project of data valuation is fraught with epistemological ambiguities and a defiance of traditional economic models for establishing value (Bennett Institute for Public Policy & The Open Data Institute, 2020), this emphasis on data as resource to be unleashed as opposed to artifact to be protected is crucial to understanding the shape of key conversations related to this consultation.
Roundtables, stakeholders, ministerial briefings
The roundtable convened by Dr Edgar Whitley, Co-Chair of the PCAG, and the Open Rights Group to discuss the Data: a new direction proposals took place on 18 October 2021. Joining the Department of Management in September 2021, having submitted my MSc thesis on the National Data Strategy that Summer, made for a fortuitously timed opportunity to contribute to this consultation process. The PCAG x ORG roundtable was recorded and turned into a summary document (under Chatham House Rules) submitted to DCMS and used to inform the Ministerial Briefing I delivered on Wednesday 3 November 2021. This briefing involved a range of other stakeholders including the Confederation of British Industry (CBI), the Open Data Institute (ODI), Ada Lovelace Institute, the Institute for Government (IFG) and Policy Connect.
Below is a brief outline of the five areas of reform – as laid out in the Data: a new direction document – and five headline concerns raised in the PCAG x Open Rights Group roundtable and of interest to me. It has been structured to reflect the construction of narratives around data use that at once illustrate how complex and juxtaposable a political picture is being rendered around this instrumental, yet somewhat intractable, resource.
It is also prudent to point out that it would be easy to oversimplify – to the point of obfuscation – the content of these detailed proposals. Indeed some proposals (e.g. in relation to the processing of protected characteristic personal data in order to create benchmarks against which the bias of AI systems can be tested) reflect the considered and careful work undertaken by the Centre for Data Ethics and Innovation’s (CDEI) in producing their AI Barometer. Nonetheless, the fusing of data, often personal data, with economic growth as in mainstream political discourse, and reflected as the overarching ambition of each of the government’s documents on this subject over the past fourteen months, must be interrogated. The centring of data in our political and economic lives could prompt quite a different reflection on value and values, and the space for this opportunity must be forged.
Data: a new direction – consultation document headlines and responses:
‘Reducing barriers to responsible innovation’ (p. 11)
OR, decoupling individuals from their data?
Proposals to scrap the balancing test, make further processing easier and drawing equivalence with research and the public interest have the potential to undermine the ability of individuals to have input into the purposes to which their data will be put.
‘Reducing burdens on business and delivering better outcomes for people’ (p. 53)
OR, creating a different regulatory burden?
It is not clear whether introducing a new regulatory framework, with its own Privacy Management Programme processes, will achieve the stated goal of reducing regulatory burdens, or actually end up increasing it.
‘Boosting trade and reducing barriers to international data flows’ (p. 86)
OR, undermining data adequacy with the EU?
Serious concerns have been raised about the EU’s data adequacy decision being undermined by the type of data transfer agreements the UK is signing with other countries which may not conform to EU standards of data protection.
‘Delivering better public services’ (p. 103)
OR, increasing concerns at opaque public/private data partnerships?
There are concerns about increasing public space surveillance and the nature of the private technology partnerships that are underpinning this expansion.
‘Reform of ICO’ (p. 113)
OR, waning independence of the ICO?
Roundtable participants raised a number of concerns about the proposed reforms to the ICO which would have the potential to undermine the regulator’s independence at a time when, arguably, the regulator needs greater powers of intervention, not less.
Unsurprisingly, it is quite the challenge to provide a response to such an expansive, and important, document. A response that is both comprehensive and appreciative of the often labyrinthine context-specificity of issues related to dimensions of data collection, processing and application. Yet mapping (and critique of that mapping) this instrumentalising ‘resource’ has become an urgent task, not least because its use is a function of classification and measurement systems which require ongoing scrutiny but also because of issues related to value – around which the right questions have perhaps not yet even been formed. Similar to Diane Coyle’s argument for more diversity in Economics, (Coyle, 2021), in order that the discipline can more inclusively form questions, the same could be said for how we ought to approach framing questions about data and its role in, for and about society and the economy.