Is the data, and democracy

The end of the year has accelerated negotiations on several data regulation packages that will be key to the future of technology platform markets in the European Union, how to address the growing amount of disinformation, hate speech or illegal content, as well as how to ensure transparency or limits on the use of personal data. The Digital Markets Act –DMA– is at stake this week with the final amendments process at the European Parliament. Permanent Representations at the EU Council agreed on a common approach on the Digital Services Act –DSA– at the end of November, thus likely speeding up next steps in the Parliament. Just two weeks ago, the Council and the Parliament reached a provisional agreement on the final text of the Data Governance Act –or DGA.

These issues may seem far apart, or too legal-oriented. However, they are not. The reason for taking them forward is not just a market issue. It also has to do with sustaining democracy and how European citizens’ data is secured, treated, used and protected (by non-European as well as European entities). In other words, how to wheel citizen trust and democratic legitimacy.

From opportunity to necessity

A particular case is that of the Data Governance Act. It is among the least heard regulations, but its impact may be significant. The goal of the DGA is to set up robust mechanisms to facilitate the reuse of certain types of public sector data, increase trust in data intermediation services (i.e., which entities are the “bridges” all data goes through), and encourage data altruism across the EU.

The first point touches on how to proceed with an appropriate reuse of public sector-owned data which is subject to the right of others. This ranges from trade secrets and intellectual property to personal data gathered by public administrations. The act proposes this data to be reused only under exclusive arrangements, when justified and if necessary to provide a service of general interest, and also for a limited timeframe.

However, the challenge is the lack of comprehensive definition on what ‘general interest’ means. This has not yet been framed and doing so will be essential for a democratic point of view. It is unclear whether general interest will be defined by topic (for example, reusing all EU citizens’ data to improve services in an essential sector –such as health– throughout the EU); or whether the general interest will be framed by group (as would be reusing the data of a vulnerable group –for example, unemployed people over 45), because doing so will improve a public policy that will benefit the general interest. Or, whether it will follow in the footsteps of the Artificial Intelligence Act proposal by the European Commission, whose approach is risk-based; it will opt for the case-by-case oversight model, carried out by US public agencies; or, rather, a rights-based approach, as postulated by civil society organizations such as AccessNow.

It is in the other two objectives of the DGA where the perimeter is more well-framed, and whose driver is to bring citizens a greater, proactive role. When the DGA seeks to increase trust in data intermediation services, it means that it is necessary to ensure digital platforms holding data will share it exclusively under certain principles. However, when looking into detail, it happens to be that the DGA aims individuals to claim control over their own data, and decide whether or not to allow their data to be shared with a company. Some mechanisms are on the horizon, such as personal data wallets (where a company can access them based on previously given consent). It is important to stress out that several companies are already filling the cup on this, although they were born precisely for this “security by design” purpose.

A deeper approach to the role of citizens is foreseen in the DGA’s third goal. Through a register of data altruism organizations, individuals and companies can make their data “available on a voluntary basis for the common good”, such as medical research projects. This unidirectional model whereby citizens donate their data is positive if the proposed clauses on protection and privacy are guaranteed, but still, it is an insufficient framework.

Data altruism

It is not envisaged that data altruism will be carried out reversely: this is, a scenario where data managed by intermediary services will be openly deployed so that citizens can analyse them and assess their social impact on public policies, social cohesion and democratic quality. According to the DGA, data altruism organizations should be constituted for “general interest purposes” (such as medical research). However, the concept remains poorly defined.

There is an opportunity to extend the data dashboard to social organizations –such as international NGOs with national chapters in Europe working for children’s rights–, think tanks –to analyse data carefully and provide policy reports with constructive recommendations–, or to academic research teams on topics that are not necessarily officially categorized as being of general interest. The reason is twofold: it is a democratic matter of transparency, but it would also allow, both for the more mercantilist and the more public service-oriented perspectives, for both in an even-handed way, to improve data analysis, to understand whether there is an overlap of resources, and other questions regarding efficiency and distribution.

When geopolitics and democracy blend

Proposals made in this last year are an opportunity and necessity that the EU is successfully moving up to the chain –and, indeed, at rapid speed in recent months. This is not by chance. The EU is seeking to ensure that all the legislative packages are as closely linked as possible in time and scope. But it is also a tool to show globally through a solid agenda, concretely in multilateral negotiation forums the EU is launching with other countries. This is the case of the Trade and Technology Council with the United States, with whom the EU has already pointed out those topics to not be discussed, namely the DSA and the DMA. This also touches on the Digital Partnerships with India and Japan, with whom it seeks cooperation and mutual benefit in connectivity, in technologies deployment, and also in data governance convergence to facilitate safe and secure cross-border data flows.

To achieve these goals, at a time of critical transition democracy is going through globally transition largely mediated by the digital, the EU will be successful if these good ambitions and works, which it is already promoting both internally and geopolitically, go hand in hand with a closer approach to citizens. The whole is more than the sum of its parts.

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