Wednesday, May 30, 2018

In a commentary in the Financial Post, Prof. Ariel Katz suggests that the Law of the Sea offers a useful framework for thinking about data governance. He concludes "Information can be free, shared and open, owned, closed and expensive; it can be empowering and dangerous. We must determine what we want it to be." ("Data governance in a digital age: When information wants to be unfree," May 19, 2018).

Read the full commentary on the Financial Post website, or below.

Data governance in a digital age: When information wants to be unfree

By Ariel Katz

May 19, 2018

During the 15th and 16th centuries, Spain and Portugal asserted that because they discovered new navigation routes to territories in Asia and America, they also “owned” the right to trade with those territories.

But the Dutch, a middle power with big trade aspirations, challenged those claims. They argued that international waters should be treated as a commons — “Mare Liberum” — because the sea can be used by one person without lessening the use of another.

Dutch jurist Hugo Grotius compared a person claiming a right to exclude others from navigating the seas to the person who “should prevent any other person from taking fire from his fire or a light from his torch.”

The freedom of the high seas became a basic principle of international law, yet like most basic legal principles, it is not absolute, and a coastal state could still treat a maritime belt adjacent to its coastline, known as territorial waters, or territorial sea, as an (almost) indivisible part of its domain.

International law has since moved to recognize even larger zones in which a coastal state may enjoy certain rights to the exclusion of other nations. At the same time, there has also been a move toward proclaiming a “common heritage of mankind” regime over the seabed of the high seas.

The development of legal rules concerning the seas reflects several important functions that the seas have performed: first, as a medium of communication; second, as a reservoir of resources; and third, as in the case of territorial waters, as essential to the state’s security and strategic considerations.

This governance of the sea can be a useful model for thinking about the international governance of data: some aspects are governed as commons, others as a shared resource, while others are governed as semi-commons, or subject to exclusive jurisdictional control.

One set of rules might be comparable to the right of innocent passage. The Law of the Sea recognizes that within the territorial waters, complete commons governance may be neither possible nor desirable, yet as far as innocent passage is concerned, the law stops short of exclusive control. Domestic law, including constitutional norms regarding privacy and search and seizure, as well as telecommunication policies, including “net neutrality,” have adopted similar rules to the transmission of electronic data.

Like all metaphors, there are limitations in using the Law of the Sea as a metaphor for data governance. Although Mare Liberum was based on the broader concept of common rules of law applicable to all human beings, it was also written in the context of a conflict between European nations over the conquest and colonization of other nations and peoples. Grotius articulated doctrines that preserved the freedoms and privileges of the powerful.

As Jonathan Obar and Brenda McPhail explain, the rules that we write about the governance of data may also empower the powerful and punish the marginalized. Much depends on the identity and interests of those who set the rules, and the processes of designing them.

The rules concerning data governance, for example, have increasingly become integrated in international trade agreements. But these may not be the proper venue for developing the right set of rules.

Instead of committing to a commons baseline for the treatment of information and data, intellectual property rights have expanded relentlessly through international trade agreements. As a result, even if information wants to be free, more and more of it is owned and locked down, and it is more expensive than ever.

Recent trade agreements, such as the Trans-Pacific Partnership (TPP), also prohibit mandated open-source policies, even though, in many cases, access to the source code of software could be an effective way to detect and fix software flaws that, as Thomas Claburn has noted, now “have the potential to crash cars, planes, medical devices, appliances, and other connected infrastructure.”

This prohibition also makes it more difficult to counter explicit and implicit biases that are coded into the growing algorithmic decision-making. While the TPP requires its parties to adopt or maintain consumer protection laws, it does not include any specifics.

The combined result is ever-growing restrictions on individuals’ ability to use information — the common heritage of mankind — and on states’ ability to address those instances where information can be misused and harm their citizens.

Information can be free, shared and open. It can be owned, closed and expensive. Information can be empowering and it can be dangerous. Ultimately, it is up to us, as a society, to determine what we want it to be.