A new human right to our personal data?
A self-confessed human rights sceptic makes a case for a new right to our personal data.
Perhaps you’ve clicked through here because of a real concern for your digital future, informed by deep industry insight. Perhaps instead you’ve no more than a nagging sense that right now the sands of the digital world are shifting, that we are approaching a critical juncture. Perhaps you found the article’s featured image intriguing.
In any event, clicking was an excellent choice. Thanks for tuning in. All are welcome. This question is hugely important. Do we have a right to our digital selves? What claim do have to our own data?
Here I will argue we have a strong claim to our own personal data based on human rights alone. But that, in reality, this new right will only be won by delivering value to people from their own data.
But before we get to the case itself, let’s first deal with this self-confessed scepticism toward human rights.
The Universal Declaration of Human Rights (UDHR), proclaimed by the United Nations in 1948, provides much of the basis for our modern understanding of rights. And to my mind two terms used in the Declaration itself set the threshold for what might constitute a right. The first one is in the name. Universal. That everyone, everywhere must enjoy the same rights and freedoms equally. The second is inalienable. That rights are unable to be taken away, lost, misplaced or forfeited.
Now these are pretty high thresholds. And there are many claims in the Universal Declaration that you’d say meet both. A right to life, freedom from slavery, a freedom of assembly and expression, even equality before the law and the presumption of innocence until proven guilty.
But many of even the most basic rights of the UDHR are still a long way from universal and inalienable. First World countries struggle against the original list. Article 23 for example claims everyone has a right to equal pay for equal work. Are there yet any countries where equally qualified women get the same pay as their male peers?
There has since 1948 been an avalanche of further rights declared, all less universal and more alienable. The right of children to play for example, while a more than admirable claim is pretty pointless, to my mind, where many children have insecure access to much higher order requirements for a decent life. 150 million children around the world are homeless and approximately 3 million child deaths each year are attributable to poor nutrition.
Human rights are a powerful and worthy concept. But like the boy who cried wolf, invoked too often the concept starts losing its effect. And unfortunately this dilution of potency isn’t restricted to just the more aspirational declarations. Each new unrealisable right we add today undermines the most fundamental of rights declared in 1948.
So I’m no rights denier, but a strong sceptic. And the scepticism is less about law or enforcement and more about language. The continuing value and power of human rights is dependent upon maintaining their scarcity by keeping the thresholds for new additions high.
These then are the same high thresholds I propose a new right to our personal data meets and clears.
The backdrop to our modern human rights
Looking back over the UDHR articles from 1948, you soon realise all the best rights are already declared. They’re written in a timeless manner, not one outdated concept amongst them. This isn’t surprising if we recall the context in which the UDHR was developed.
Drafted in the immediate aftermath of the real life horror show of World War II, the UDHR is a list of conditions enabling people to flourish, but perhaps more importantly, it should be seen as an attempt to list all those conditions necessary to prevent the rise of evil.
And they are written at the level of concepts and conditions. Of freedoms and abilities. The Declaration defines each right as an end without seeking to also define the means to those ends. It’s silent about how those rights are best secured because over time, and with changes in technology, the best way to secure them will change.
How do we prove a right to personal data?
Owning, or having access to our personal data doesn’t guarantee us any freedoms or abilities. It’s just data, an object, zeroes and ones, a means to an end. By itself data isn’t good or evil.
What matters is what’s done with it.
Those arguing for a new human right to personal data then must demonstrate how owning or accessing our own data is essential to supporting, enabling or securing fundamental human rights.
There are 30 articles in the UDHR. Each article deals with a distinct domain of freedom or ability. I’ve selected the following articles as those that personal data rights most supports, enables or secures.
Article 3: Everyone has the right to life, liberty and security of person.
Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.
Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 21: (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
When we think about our online lives, especially the hidden algorithms influencing so much of what we see and the real effect “fake news” has had on our politics, we might think those rights most abused are those outlined in Articles 12, 18 and 19. Namely, freedom from arbitrary interference with personal space, freedom of thought, and an ability to seek, receive and impart information without interference.
No doubt these rights are abused and the algorithms behind our most popular platforms require greater scrutiny. But access to only our own personal data generated on social media websites is not the answer. Our own data in a vacuum is useless in creating a more accurate sense of the world than the one fed to us.
Perhaps the greater power of our personal data is in securing the rights outlined in Articles 3 and 21. Our right to liberty and an ability to inform and influence government.
The world wide web in its infancy was hailed as the ultimate tool of liberty and freedom. It’s creator Tim Berners-Lee “imagined the web as an open platform that would allow everyone, everywhere to share information, access opportunities, and collaborate across geographic and cultural boundaries”. Tim now fears the web is at serious risk of not fulfilling this promise.
Over time what was once an open platform of free exchange in ideas, products and services has now become a series of closed platforms or “walled gardens”, where our movement has been curtailed by our service providers for their commercial gain. The billion dollar profits of our banks for example are built on the huge barrier we have to surmount in shifting our money and our data to a competitor.
One of the most powerful things we can do with a right to our personal data is simply reclaiming our liberty, our free movement online. Known as data portability, it’s the ability to easily take our data, our entire account, to the competition to get ourselves a better deal.
And access to personal data will vastly strengthen our right to influence public policy and to hold our governments to account.
Focus groups and stakeholder consultations are inefficient and often not representative. In a world where the value of data rapidly depreciates with time, the census is relatively as regular as Halley’s Comet.
A lack of understanding and awareness of public sentiment allows room for politicians and other interest groups to misconstrue and manipulate outcomes. It’s only an absence of personal data feeding into the political system that makes it possible for the squeaky wheel to get the grease.
Our politics would be much better for more accurate, real time statistics on our collective views and beliefs. Our public services, health, education and the rest, would be much better designed and delivered with more information on the people whose needs they’re meant to meet.
A right to personal data is essential to ensure our individual voices are heard.
A case made clearer by changes in technology and human behaviour
We are living more and more of our lives online. The average internet user spends two hours every day on social media alone. Over a lifetime that will add up to as many as six years. And our usage is only trending upwards.
All the while we’re sharing valuable pieces of information about ourselves. Our views, beliefs, relationships, purchases, vacations, professional accomplishments, our location and movement, and much more besides. This information is our personal data. We are our data.
Consider then our personal information, our data to be our virtual body. It’s how we are represented online, our digital person. Right now we are no more than digital ghosts, with our personal data lost to us and dispersed across platforms, we are dismembered and alienated from our online bodies.
If the rights of freedom and liberty of mind and movement in the physical world, outlined in the Universal Declaration of Human Rights, are to be realised in the world in which we are increasingly living, I suggest a right to access and control to our data is essential.
Our personal data is essential in securing our online freedom to hold opinions without interference and to seek, receive and impart information and ideas.
It’s essential to providing a valuable perspective of how our opinions and beliefs truly compare with the real, geographically defined communities in which we live, rather than the online communities we keep or to which algorithms confine us.
Our personal data is essential in realising our right to influence the government of our countries, directly or through freely chosen representatives.
Our personal data is essential in securing our online liberty, in taking down the walled gardens that dominate the online landscape, allowing us the right of choice, to take our trade and custom wherever we wish.
But universal and inalienable? Hardly. Not all people are living more of their lives online. In fact, about half the world’s population is yet to connect to the internet.
Connectivity however is rapidly increasing, and crucially, First World governments are beginning to agree that a right to personal data exists, and precedents are being established.
Governments begin to move
European Union is leading the way, in April enacting the General Data Protection Regulation (GDPR).
- Easier access to your own data: individuals will have more information on how their data is processed and this information should be available in a clear and understandable way;
- A right to data portability: it will be easier to transfer your personal data between service providers;
- A clarified “right to be forgotten”: when you no longer want your data to be processed, and provided that there are no legitimate grounds for retaining it, the data will be deleted;
- The right to know when your data has been hacked.
The Australian Government’s Productivity Commission has followed in EU footsteps in advocating for a comprehensive right of individuals over their data. In an argument based not on human rights but on economics alone, the Productivity Commission believes enshrining data rights for individuals is an essential reform for improving competition and the performance of markets.
Personal data rights are seen as an alternative to the antitrust regulation of big data corporates like Google, Facebook, Amazon and Microsoft, and also key to unlocking the value these companies currently monopolise by supercharging the process of creative destruction that ultimately fuels market economies.
And money talks. The economic argument is more likely to propel a universal and inalienable right to personal data than claims to human rights. So if the dollars, or euros, stack up you can expect other countries to join the EU in regulating for personal data rights. It’s a universal right in the making, growing and spreading gradually rather than by global declaration.
Self-evident but not self-executing
So we’ve proven a new human right to our own personal data. Great. We can all go home now right? Not quite.
The soon to be former President in his farewell address then went on to affirm that rights, while self-evident, have never been self-executing.
So while there may be strong claims to our own personal data, don’t expect it to be volunteered to us.
There are enormous interests invested in maintaining the status quo. Taken together these interests are so large that they often dwarf those of countries or even whole continents. And the people, organisations and industries behind these interests are totally intertwined with government; those we would rely upon making this right a reality.
Take the banking industry as an example. Their billions in profits are pinned on it remaining a hassle to move our accounts to their competitors. The fees they charge and returns on deposits are directly correlated to the ease or otherwise of this move. They’re banking on us not securing a right to data portability and they’ve appointed the right people to ensure their interests are secured…
The President and CEO of the American Bankers’ Association is a former White House staffer. The President and CEO of the Credit Union National Association in the US is a former member of the US House of Representatives and Chair of the House Finance Committee. The Australian Bankers’ Association is led by a former State Premier. The same pattern is repeated everywhere.
Also, don’t underestimate the desire of bureaucrats to keep us distant from our personal data as it relates to public services, including our health and education records, which at both an individual level and aggregated would shine a revealing light on their performance.
While advocacy is admirable, a right to personal data cannot be won and then defended passively. Again, what matters is what we do with our personal data. If President Obama is correct, then change will only happen when people are involved and engaged. And people will only become involved and engaged when they have skin in the game.
Involving and engaging people with their personal data, such that they come to demand a right to it, depends upon them extracting value from it.
There is an important role here for innovators, disruptors and entrepreneurs. To come up with solutions enabling people to collect what personal data is already available to them, and then squeeze the most amount of value from it for themselves. This data could be from social media or bank accounts. The value could be personal, social or financial.
While governments will move slowly to follow the EU in putting in place the conditions for it to flourish, the beginnings of a new personal data economy are already sprouting.
Datacoup allows people to capture information from social and banking accounts and then sell it on a data marketplace. Cozy and Meeco are designing smart solutions for organising our personal lives using existing personal information. Brontech is also creating a data marketplace together with a secure identity verification solution. Eternime is harnessing our personal data so that we can live on virtually forever. And there are many more examples besides.
If the current trickle of data back to the individual is to become the liberating, empowering stream we arguably deserve and have right to, then this early demonstration of the value and power of personal data to the individual is key to turning on the tap.
Let’s quickly recap to conclude
We’ve established the bar is high. A new right must be universal, inalienable and essential in supporting, enabling or securing the most fundamental of human rights.
A new human right to our personal data arguably meets this threshold.
But while we have a strong claim to our own personal data based on human rights alone, that right that will only be won by demonstrating to people the personal value that can be derived from their own data.
Richard Shannon is a professional entrepreneur and amateur ethicist.
Richard, through his startup Worldview, is on a mission of democratising personal data. It’s a mission of empowering people by putting them back in control of their own data, enabling us to capture our personal information and then squeeze the most value from it.