Alternative Dispute Resolution

In the era of data abuse we are becoming too familiar with news about social media giants “scraping” or gathering up data about friends, family, email addresses and lifestyles from our social media accounts for onward sale and massive commercial profit.  Yet data can be used for immense good.  How can a balance be struck which provides safeguards for users whilst enabling society to gain?

Most people now live, work and play in cities.  Cities are responsible for 83% of the greenhouse gases emitted in the world.  Data can help us to understand how best to improve the way we inhabit and use our cities with a focus on gathering data from the Internet of Things, about the way we package food and where we drive.  The challenge is enabling so many contributors such as supermarkets and local authorities to share data from millions of users in a fair, transparent and legitimate manner with a shared understanding of purpose.  Data gathered without those vital ingredients becomes another Cambridge Analytica.

Hence to the Royal Society of Arts (RSA) in central London for a conference to debate data – held in the Great Room beneath the questioning gaze of James Barry’s monumental paintings depicting The Progress of Human Knowledge & Culture. The Society was founded in 1754 with the aim of promoting “collaborative action … to address today’s most pressing social challenges”.  The Great Room has hosted great debates in the past and witnessed another on Monday 15 April 2019.  This time: “How to unlock the value of data while preventing harmful impacts?”  Convened by the Open Data Institute (ODI), a think-tank founded by the inventor of the web Sir Tim Berners-Lee and artificial intelligence expert Sir Nigel Shadbolt.  We learned that the ODI has undertaken three pilot projects to better understand how to facilitate safe data sharing in multi-actor situations.  The pilots were funded by the UK Government’s Office for AI and Innovate UK.

The cities example I gave above was one of those pilots and was undertaken with the Royal Borough of Greenwich and the Greater London Authority.  Another pilot concerned the illegal wildlife trade and how internationally based organisations can share data to combat this criminal activity.  The third pilot concerned the reduction of food waste. All have laudable aims and each project found multiple contributors some of whom (especially in the food waste project) were, perhaps understandably, reluctant to share commercially sensitive data; for example, some supermarkets.

One solution was to create a structure which was regarded by all involved as a safe space in which personal data could be shared within agreed parameters and used toward a defined set of outcomes.  A hub if you like to overcome a number of issues.  Of course just to persuade people to come together to define the terms for the sharing and the agreed outcomes may be a Herculean task in itself.

Once the logistical issues about data collaboration are solved then there are issues about the right legal entity to use.  No-one seems to agree the right name for starters.  Two common names are Data Co-operatives and Data Trusts.  Professor Chris Reed of Queen Mary, University of London explained the English and Welsh law concept of a trust may not be appropriate but that other types of legal structure might work, such as a community interest company.  Each model for the legal structure brings different governance issues.  “Data Trust” seems to have gained currency as a loose, non-legal name to mean any structure which enables the sharing of personal data which has been agreed with all collaborators.

The conference did not explore whether technology can assist by enabling a Data Trust to function via the Cloud with appropriate tools enabling security, restricted access, analysis and reporting.

Issues around data privacy are where I started this article and there remain big questions about how data provided for one purpose may be processed for a different purpose leading to the issue raised earlier about the vital ingredient of transparency in data gathering.

These challenges are being addressed by the Co-Op as we learned from Ian Thomas, Group Head of Data Governance at the Co-Op.   The Co-Op is a commercial organisation which uses data to understand how better to manage its business and plan development but is answerable, as a membership organisation, to its members for its use of their personal data.

Bottom up trusts were spoken of as a way of including common purpose by design and by default.

Another challenge was how to secure collaboration and data sharing (leaving aside permissions) from large commercial operators who had no need to share the data they collect for anyone’s good other than their shareholders.  Views were mixed about how to go about this ranging from demonstrating the costs savings that might be achieved to tax breaks or compulsion via regulatory interventions; or a blend of all three.  It was also suggested that data sharing via a data structure might also be required by the Competition and Markets Authority as a way of minimising the effect of mergers.

An example of a data trust which is a talking point in Canada, more by its absence than its prominence, is the Smart community being built on Toronto’s eastern waterfront (Waterfront Toronto).  Sidewalk Toronto is a joint effort by Waterfront Toronto and Alphabet’s Sidewalk Labs to create a new kind of mixed-use, complete community in which Alphabet (parent company of Google) created a platform to collect the community’s behavioural data.  This has however become controversial with objections to the way in which the aggregation of data was being undertaken.  On 18 April it was reported that The Canadian Civil Liberties Association (CCLA) is suing Waterfront Toronto and the federal, provincial and municipal governments about these issues.  The claim is that the Government had allowed access to behavioural data without consent.

All this, perhaps, shows how not to set up a data sharing structure.  The problem being that in the Waterfront development there appears to be no data structure.  Which brings us back to where we began.  Data Trusts offer enormous opportunities to benefit society.  However, enormous opportunity is beset with enormous challenge.

About Tony Guise:

Tony Guise is the Director of a company which provides a Platform for mediation and other ADR schemes.  Tony writes regularly for the Chartered Institute of Arbitrators, the Law Society’s Gazette and other journals on issues concerning IT, LawTech and its utility for the citizen.