Kim Covert

‘Tis better to govern data, than to own it

octobre 25 2018 25 octobre 2018


University of Toronto professor Lisa Austin’s problem with the idea that data is the new oil isn’t so much with the idea that data is an asset that can be shared.

“The discussion is who should own the data, but where’s the discussion over whether data is a thing that can be owned?”

The basic characteristic of ownership, she told the CBA’s Privacy and Access Law symposium in Ottawa in October, is the right to control or transfer a thing, and others’ obligation not to interfere with that thing.

But if you start from the idea of ownership, she says, there’s very little in the law that says that control or ownership needs to be exercised reasonably.

“Ownership means I get to decide, not you,” and we don’t govern that by norms of reasonableness – there’s no social obligation built in, says Austin, the university’s Chair in Law and Technology who teaches both property and privacy law. Her keynote speech was titled, Metaphors Matter: Why Data is Not the New Oil. “If you start with ownership you have an uphill battle to get anything else on the table.”

Clive Humby, a UK mathematician, is widely agreed to have originated the phrase “data is the new oil” in 2006 – meaning that like oil, data is valuable but without being refined it can’t really be used. Austin suggests the metaphor doesn’t hold up.

Instead of using the language of ownership when talking about data, Austin says, we should be framing the discussion in terms of governance. While ownership is about rules of access, governance is about rules of use.

This is important because when data is about people, there is no norm-free space, or place where one set of norms prevails, she says. Access to data about things – for example, government statistics about caribou – should probably be free if someone wants it, but there is a social dimension to information about people that has to be taken into account if it is to be used reasonably or responsibly. The Cambridge Analytica data scandal showed us what can be at stake if that information is misused.

Oil is used to create new things, like gasoline and plastic, but information is not.

“We are amassing and using data not to create new things, we’re using it to learn things, and that’s what makes data valuable.”

While there are issues of individual privacy and control in data protection, Austin suggests we need to stop talking about personal information and start talking about information about people.

Canada’s privacy laws require consent from the individual to use personal information, but Austin says we shouldn’t get bogged down in consent. A legitimate purpose exception would be a better standard.

The idea that personal data can be free as long as we de-identify it is “too simplistic for our age,” says Austin.

She notes that most of the techniques that are used to mitigate the ability to identify the source of the data actually serve to diminish its usability. We need ways of controlling access that we can audit and police properly.

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