Weeknotes Jan 27, 2023

We had our Director’s retreat on Tuesday this week: plotting out some of the year ahead, and trying to think in more detail about the different events and activities we’ll be engaging in. I’ve not quite managed to write all of that up yet, but as my train pulls back into Stroud, and aware I missed sharing weeknotes last week, here are three quick(ish!) reflections from the fortnight.

• Beneficial ownership, legitimate interests and collective data governance
• Learning about the Digital Good Network
• Preparing to share participatory data governance cases

Legitimate interests in focus

I spent two days this week (outside of my work for Connected by Data) facilitating a team retreat for Open Ownership. Besides having a lot of fun using a scenario game to take the team through four months worth of potential decision making and practice dilemmas in two hours, and reconnecting with the quite phenomenal work Open Ownership’s team do in accessibly supporting the implementation of highly legally and technically detailed reforms, I also got the chance to learn more about the recent EU Court of Justice ruling that has, in essence, put a pause on public access to European registers of beneficial ownership.

There is a fair bit of nuance in the ruling, but as I understood it (thanks to Tymon Kieppe for very patient explanations!):

• Under the 4th European Anti-Money Laundering Directive (AMLD), countries set up registers of beneficial owners (the real-world people, rather than shell companies, offshore vehicles, or other intermediaries, who ultimately own or control companies), and provided for those with a ‘legitimate interest’ to have access to data from the registers. \

• Following challenges in implementing a ‘legitimate interests’ access regime (e.g. Judging who does have a legitimate interest? Bureaucracy of access leading to limited use etc.), the 5th Anti-Money Laundering Directive recommended public registers as the best means to provide effective access to data. \

• Following a court case brought in Luxembourg (by someone who was refused permission for their information to be excluded from the public record), the EU Court of Justice has ruled that “fundamental rights to respect for private life and to the protection of personal data” mean that making beneficial ownership registers “accessible in all cases to any member of the general public is invalid”. \

• Very specifically, the court was not convinced that, given that beneficial ownership registers in the EU are based on in anti-money laundering objectives, the difficulty of operating a legitimate interest regime for access necessarily justified opting for public access to data.

Through a Connected by Data lens this is potentially very interesting. We’ve been thinking a lot about issues of legitimate interests for data access and sharing, and about how to avoid the oppositional framing of privacy and data sharing, as well as how to recognise the differential impact of data governance decisions on different communities.

I’ve been starting to think (early stage thought being the operative framing!) about how the conceptual toolbox of Connected by Data, particularly work on participatory, deliberative and democratic data governance, might apply here.

• Firstly, this case could highlight the need for a broad public discussion on the social contract around company ownership in the digital age. Just as principles of open justice are potentially altered in a shift from paper records to digitised access, does the social contract that granted limited liability (for example) in return for publicity of ownership, need re-examining, and, if still relevant, re-asserting, to give a public mandate to transparency measures? \

• Secondly, as individual countries, or the EU more broadly, potentially develop new or revised ‘legitimate interest access regimes’, is there a need for deliberative (and cross-border) public dialogue that can establish a shared understanding of the reasons and mechanisms of access that are broadly seen as legitimate. From both an advocacy, and a policy-making perspective, having a clear understanding of where an informed European public would draw the line between public and ‘credentialed’ access to beneficial ownership data could be of significant value. \

• Thirdly, what might the value be of more clearly naming the different categories, ‘collectives’ and communities of people likely to be specifically affected (both positively and negatively) by public registers (e.g. people at risk of domestic abuse; people involved in companies with particularly complex ownership structures; people involved in legal cases; journalists; developing country investigators) and to engage specifically with these groups about how they are affected, and whether there are universal, or specific, mitigations that might be reasonable to have in place to, in effect, compensate for the impacts on these groups of whichever general settlement is reached with respect to public or limited register access. \

Whether any of the above are viable approaches needs more thought and conversation - but it strikes me at least that the reframing offered by collective and participatory models of data governance is useful to apply. \

Digital good

Last Monday I had coffee with Helen Kennedy, Director of the new Digital Good Network, and PI of the recently completed Living With Data project. In our discussion we touched on the potential of a ‘data solidarities’ framing in moving discussions beyond a common dichotomy set up between ‘data fairness’ (procedural approaches to data governance), and ‘data justice’ (substantive questioning of what data governance leads to): building on experiences from the Living with Data research that demonstrated how individuals often consider the wider impacts of data on people like, and people unlike, themselves. In other words, solidarity provides one route from the individual to the collective.

We also discussed the need for continued efforts to challenge the twin narratives that ‘people don’t know’ and ‘people don’t care’ about how their data is used, and the political challenge of gaining policy maker attention on data governance issues.

I’m looking forward to seeing where the Digital Good network develops over the year ahead.

Sharing participatory data governance cases

I’ve been thinking a lot over the last fortnight about how we better use, and share, our exploratory work on cases of participatory data governance. With Maria bringing new energy to the case collection, and our self-imposed deadline for a public release of a case database far in the rear-view mirror, I know this is an area of our work that needs some real progress in Feb.

Attending an Involve-organised workshop on 16th Jan in York (taking place to explore the question “How can data policy be informed by sustained and sustainable public engagement?”) I was particularly struck that, though the room contained some of the people responsible for commissioning or running a number of key participatory data governance activities, there wasn’t a strong sense of an existing community of practice around participatory data governance. I didn’t get a sense of strong awareness between practitioners of each other’s work, or the range of approaches to engagement that could be adopted to secure powerful public voice around data.

We could draw on this when, this Monday, we spent an hour with Virgil from Convicible media, who I’ve asked to help us refine the design of a case study section on the Connected by Data website. The discussions surfaced a need for us to sharpen our understanding of the potential users of a published case study collection, and their user needs, which we’ve done in an initial iteration of four user stories to guide our designs:

• As the data lead at a local authority in the UK I need to get practical insights into how other organisations have run participatory data governance activities so that I can design a local process and secure buy in \

• As a central government policy maker I need to be reassured that participatory data governance is feasible and to be inspired ` so that `I give my backing to, and become a champion of, a participatory data governance activity for my organisation \

• As a research associate at a think tank in the Global South I need to get a sense of the range of different approaches to participatory data governance that exist so that I can talk about these within our research and advocacy work \

• As an academic researchers I need to access a dataset of examples of participatory data governance so that I can analyse it as part of my research

The discussions with Virgil also helped to highlight the differences between the structured approach to data collection we use as part of the research process, and the more communicative copywriting approach we may need for some of the text about the cases we include.