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LiorSokolSecondEssay 2 - 07 Jan 2022 - Main.EbenMoglen
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The Adequate Balance in Governmental Big Data Disclosure Policies | | | In my view, the Canadian applicable law presents a unique and adequate mechanism. The only way to benefit from governmental big data without severely violating people's right to privacy is limiting it to information that cannot be re-identify at the very least for the near future. | |
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I think there are two deceptive categories here: "big data," and "disclosure." What information government has, how it is collected, from whom and in what context cannot be reduced to a distinction between "big" and "small." What government publishes to whom, when, and under what procedures cannot be reduced to "yes," "no," or "only if not immediately personally identifiable," Treating one local court decision as a "policy" is also unhelpfully out of scale.
If your intended point is that there are no subtleties, we need to know why. If your point is that contextual treatments of government disclosure obligations (HIPAA rules, the FERPA approach to educational records, the FOIA exceptions, grand jury and prosecutorial secrecy rules, protections for trade secret disclosures in regulatory filings and all the other variants) are unnecessary or unhelpful, we need the reason. Intentional oversimplification for explanatory purposes may be valuable, but it needs to be explained.
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LiorSokolSecondEssay 1 - 09 Dec 2021 - Main.LiorSokol
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The Adequate Balance in Governmental Big Data Disclosure Policies
-- By LiorSokol - 08 Dec 2021
Introduction
In recent years, big data is being gathered and held by governments. Once this data is collected, a question is being asked whether this data should be disclosed to the public, or should it remain exclusively in the governments' hands. In this essay, I will present the main arguments in the literature for each side, and a unique mechanism that was adopted by Ontario, Canada.
Normative analysis - Big Data Disclosure
Advantages in Disclosing Data
Disclosing big data that is possessed by the government, can be advantageous in various ways. First, in fulfilling democratic purposes. In a democracy, sovereignty is given to the people, which in their turn gives the government their mandate. Disclosing information can teach the public on the functioning of the state authorities and will allow it to monitor the political priorities of resource allocation and the progress of national programs, and by that holding its elected officials accountable for their actions. For example, the "Budget Key" project in Israel, was developed to disclose to the public government information on the use of state budget.
Second, economic benefits. In the post-modern era, information is a significant component of the research and development of new products. The existence ability to analyze big data accelerates research's progress. For instance, disclosing medical data may be crucial for the ability to develop medical devices and medicine.
Disadvantages in Disclosing Data
Nevertheless, there are obvious disadvantages to such disclosure. The first and most obvious one is the violation of the individuals on which the data is collected right for privacy. Particularly, the information is often mandatorily collected by the state, lacking the individuals' consent. Even in the cases in which individuals opt in to provide information to the state, it is usually intended for a particular purpose, so that the state discloses the information for a purpose other than the purpose for which it was provided. According to theories of 'privacy as control', the change of purpose is taking individuals' information outside their control, and thus is violating the right to privacy. This violation may be mitigated if the information is published anonymously, but as long as there is a way to connect the information to the individual, the privacy violation cannot be overcome.
Second, using citizens' private data is using the individuals as a product. In the digital world, information is a product that sells at a great price. Companies pay a lot of money to direct their advertisements to people that are expected to purchase their products, and therefore a company that can provide information about a potential buyer will be rewarded financially for this. When the government opens its databases, information analysis companies may use these databases to create a user profile analysis of individuals. A combination of information from several databases, such as age, place of residence, economic and family status will allow advertisers to optimize their advertisement. Using individuals' private data as a financial product can affect the way individuals behave, consume and read, thus violating their right to privacy.
To sum it up, although sharing governmental big data can be economically and democratically beneficial, the individuals' right to privacy may be severely violated. In order to find the proper balance, the province of Ontario, Canada suggested the following mechanism.
The Canadian Mechanism
Canada is one of the world leaders in opening up government databases to the public and was rated as the country with the highest score in the world in 2018, according to the Open Data Barometer organization. Canada's right to privacy is determined by the Privacy Act, and case law. Its purpose is to protect the information collected about citizens by the Canadian government and to regulate the ways in which information is made accessible to the public. The law does not allow institutions to use the information for a purpose other than the one for which it was collected, except for subject to a law determined by parliament. The Canadian legislature has various options for authorizing the use of information, the most relevant is "for any purpose that in the opinion of the head of the relevant institution, the public interest in publishing the information clearly outweighs any possible invasion of privacy."
In the Ontario case, the Canadian Supreme Court had to decide whether the disclosure of the first three digits in the postal code of sex offenders in Ontario can be forced upon the ministry. The Supreme Court approved the regional court's decision, according to which the information should be provided. The court's main principle for ruling that there was no privacy violation was the 're-identification' principle, examining the ability to identify the anonymized data's source. The question that remained open was whether the test should be examined by existing or future technologies.
In my view, the Canadian applicable law presents a unique and adequate mechanism. The only way to benefit from governmental big data without severely violating people's right to privacy is limiting it to information that cannot be re-identify at the very least for the near future.
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