Open Future Salon #1: Introducing the Public Data Commons. B2G Data Sharing in the Public Interest

Tim was one of the respondent panelists for the first Open Future salon on ‘Introducing the Public Data Commons: Business-to-Government data sharing in the public interest’.

The Open Future write-up and recording of the session can be found here.

Open Future are a think tank for the Open Movement across Europe, providing much needed oversight of the very active EU agenda around data policy, and focussed on “advancing Digital Public Spaces, designing the Future of Open, and building the Data Commons.”

This first Open Future online ‘Salon’, bringing together researchers, civil society and EU policy makers, focussed on the recently published brief ‘Public Data Commons: A public-interest framework for B2G data sharing in the Data Act’ which makes the case for building on current Data Act proposals for a minimal set of arrangements for public authorities to request and gain access to private sector data in ‘emergency’ situations, by adding a broader range of cases in which public authorities might request access to private data in the public interest, and proposing the creation of a ‘Public Data Commons’ institution to help manage Business to Government data sharing. You can read the full brief here, or jump straight to the details of the Public Data Commons proposal.

B2G Sharing in Cities

The first respondent, Federica Bordelot of the Eurocities network described both the importance of thinking across data silos in the city context, and the importance of adopting responsible practices around the use of data that is, in many cases, derived from citizens. Federica pointed in particular to the Eurocities principles on citizen data: 10 data principles for the common good, developed in 2019, which make the strong claim that “citizen data must be recognised as a public and individual asset and shall be solely used in the public interest.”.

Eurocities have also recently produced their own response to the Data Act B2G proposals, which highlights the importance of allowing cities to operate as ‘data intermediaries’ bringing together public and private data, and that notes that current practice often involves cities developing custom contractual clauses in their interactions with private firms to secure public access to key urban data. They call for “an EU open library of clauses of B2G data sharing” that are compatible with national legislation and that cities can adopt, as well as for a clear definition of the public interest that can be used to derive a default list of the kinds of private data that should be shared with cities in particular.

Power and participation (my inputs)

I then shared a response, focussing on two themes: (1) the importance of framing B2G data sharing within the broader history of action on open data; and (2) the touchpoints for embedding greater citizen participation within the proposed arrangements. I’ve included an edited copy of my speaking notes below:

At Connected by Data we believe that getting those who are affected by data collection and use to participate in data governance decisions can lead to greater value being realised, and can help to manage data sharing risks.

When decisions are based on a real understanding of the real-world consequences of data collection and use, rather than on unexplored assumptions, it becomes easier to build trustworthy data sharing to meet both public needs, and, in many cases, also aligns with commercial interests.

Before I say more on that, let me go back to expain why work on Business to Government data sharing is so important.

One of the critical strands of early open data advocacy, drawing on the open knowledge and access to knowledge fields, was an opposition to ever-expanding notions of intellectual property, and enclosure of data as an economic asset. In one of the first published collections about open data and open government, Archon Fung and David Weil cautioned that too much attention was being paid to opening up government data, and not enough to working out the ‘corporate data’ that should also be made open in the public interest.

In my past research work, I’ve observed the growing extent of private-sector data, with restrictive terms around sharing and use, featuring within policy making, with a consequent erosion of the transparency, legibility and accountability of the policy process.

And others have argued that, if we take put aside the many critiques of the notion of ‘data as the new oil’, and think of how data can be seen as a common, albeit constructed, resource, surely its extraction should, like national reserves of oil, be allowed only under a social licence, and under the terms we, as democratic populations, set, rather than data being conceived of as something that comes into being as the sole property of private corporations.

And yet, much work on opening data in the last decade has either ignored corporate data, or only explored making business data accessible when businesses generously grant that it be provided through data philanthropy initiatives.

If the only time data in corporate silos can be accessed is when the corporation finds time and resources to overcome internal inertia, and identifies there is enough positive PR in sharing the data, then we will see significant undersupply of socially valuable data. In fact, if corporate data sharing becomes the norm, and the PR boost and incentive for ‘donating’ that data dries up, the likelihood of sustainable flows of data from private to public sector are poor indeed. There is a built-in instability in relying on data philanthropy.

In the recent Global Data Barometer we asked about the extent of data sharing laws, regulations and policies (which the Barometer refers to as frameworks) across 109 countries, and whilst we found more than 70 have frameworks in place for data sharing in government, less than 40 had frameworks for data sharing into the public sector, and of these, almost 20 were judged be our researchers to just be partial frameworks. Less than 10 clear frameworks were identified that specifically addressed B2G sharing.

This contrasts with the finding that the vast majority of countries in the Barometer have both data protection and open data frameworks.

That’s why the Open Future push on broadening B2G data sharing proposals in the Data Act is welcome, and indeed, why I would personally love to see this as part of a deeper and broader conversation about how data, derived from the actions of the public, or describing public resources and public spaces, should be made more available to the public.

Furthermore, and building on this, to support well functioning open markets, and protect against market-failures and distorted monopolies created by the network effect inherent in many forms of data collection, we need to continue to identify and assert the pre-competitive spaces in which data should be open to all - in order to create a more level playing field for public and private action. Having certain market players who maintain their competitive position based primarily on their proprietary access to data is not, in general, generative of social value.

Moving onto the specifics of the Data Act, I want to focus on the potential role of participatory governance in the proposals. The paper sets out a clear flow-chart for how B2G data sharing might be facilitated. I’d like to suggest that at almost every point of this flow chart there should be a mechanism to make sure those affected by the data-sharing proposal have a voice, and ability to shape either the decisions on data-sharing, or the design of the mechanisms through which data is shared, and preferably both.

For example, if there is a public sector body requesting, for example, location data from smart vehicles in order to support environmental planning, should there be clear evidence of support from the elected governance body of the institution for the data request?

When a request is considered by a competent Authority, should they not have clear reference to the views of the data subjects whose data might be involved, and to the communities that data will be used to affect? After all - just because a public authority requests data, does not mean it is always for the public good.

And when the Public Data Commons establishes the protocols for aggregating, standardising, reconciling and re-sharing data in response to a particular request, should not the communities affected be involved in co-designing the data infrastructure that gets constructed?

Public participation in data governance can take many forms:

• The public creating principles, policies, processes and other “guardrails” around data governance
• The public making day-to-day operational decisions about data, such as whether to share it with a particular organisation
• Or the public providing accountability and redress for harms and impacts

In short, as we engage with the design of B2G data sharing, I want to encourage us to have two words in mind: power, and participation. This should be about balancing power of public and private sector, and giving the public the power to use data for public good. And determining the public good, and determining the ways to share data to deliver it at each stage of what ultimately will be quite a complex system of governance, cannot be a solely technocratic space, driven only by legal arguments around contractual terms, or a focus on economics, but it should shaped by vibrant and robust public participation.

Discussions and next steps

After all the inputs, the Salon opened to discussion, which explored a number of issues, including the question of defining the public interest, the relationship between commons and public interest, and the need to articulate a more problem-centred rather than sectorally defined approach to agreeing data-sharing arrangements. This is particularly important in the context of efforts to create sectoral European data spaces, which may pre-empt (and even preclude) more cross-sectoral data sharing arrangements to address public interest tasks.

Open Future’s Advocacy lead Pauk Keller closed the session by bringing the focus back to the specific interventions needed around the Data Act proposals, which, in their current form, are very limited with their focus on emergency use only. As Paul put it, without change, the current proposals might lead the public sector to tie its own hands behind its back, rather than creating an environment that can facilitate better B2G data sharing. However, the proposal is still in its early stages, and there are opportunities for influence. Open Future are putting together a group of interested parties to work on advocacy, and I’m sure would be interested in hearing from others who would like to join.