Data sharing-the guiding principle should be informed consent

27 11 2009

There are many good reasons why both governments and businesses may want to capture, analyse and share data. Good in the sense that the intention is to create mutual benefit for all concerned. In some ways we would like digital marketing, for example,  to be more targeted than it is, if only to avoid the torrent of spam email inflicted on us. The gathering of statistical information by governments can also be used to plan service provision and state investments in a more rational way. So I do not take  the view that governments and big business are out to get us and that any data gathering is inevitably an unwarrantable intrusion into privacy.

However, while the interests of data  gatherers and those whose data is gathered (datees perhaps?) may be congruent, they also may not. This is a particularly crucial point now that we leave such a long electronic data trial behind us through phones, email and internet browsing. We should understand as well that governments have a secular tendency to gather information for its own sake. This tendency is particularly exacerbated today when politicians and others in the state apparatus are more isolated from their constituents than before. In wishing to reconnect they are very keen on gathering as much information about us in as many ways as they can. Their insecurity also inclines them to want to police society more closely , hence current attempts to have access to all the electronic  data held by phone companies.

The discussion around data sharing and privacy is very complex. However I think there is one principle that, if it were adopted, would enable a way to benchmark what should and should not be allowable. That is the principle of informed consent. In other words, those whose data is being collected should have agreed in advance that this should be so. The principle of informed consent is implicit in any democratic society. If we need a legal definition of informed consent which we could apply to data gathering we can go to the Nuremberg trials of 1947.

The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.

It should be informed because effective democracy requires people to understand what is being done to them and in their name. It should involve active consent because that is the essence of democratic government. In practice this should mean that any information in data form should only be stored or shared with the prior active consent of the individual concerned. There should always be an opt-in rather than an opt-out button. The onus is on the data gatherers and sharers to persuade and convince that this is the right thing to do.

This approach to data sharing is consistent with the view that we are autonomous citizens whose cooperation and consent with the state or with business is an active conscious decision taken with all the facts discuss and debated out in the open. In that sense it is an approach which would contribute towards a broader democratic renewal.