Data Protection: an important balancing challenge

Data Protection: an important balancing challenge 

It is a general attribute of modern societies that all their members have a right to own property. In its earlier forms property was always tangible and either immovable ( lands and buildings) or movable ( cattle). With the Industrial Revolution, movable property could also mean cycles, cars or buses. As we evolved, the concept of ‘contractual property’ emerged such as shares and bonds. And of what are called ‘negotiable instruments’. And more recently we saw the legal acceptance of Intellectual Property in the form of Trademarks, Copyright and Patents. And a global regime like TRIPS as a framework to which national laws were aligned. We had to align ourselves to the new ‘product’ patent regime as opposed to our ‘process’ patenting regime, which was a formidable challenge to our Pharmaceutical industry. It was not only copyright violation that was clearly illegal, but the collateral of ‘plagiarism’ which is more a matter of ethics that became a concern, especially for academics with tools like ‘turnitin’. Software could now be patented in some jurisdictions, though not in India.

To regard ‘data’ as an entity that is bestowed with attributes such as ownership, that is rightful or unlawful and has to be regulated is a relatively recent phenomenon of about a few decades ago.

Probably UK was the first to have a formal law “ The UK data protection Act 1984” to deal with the matter. The Data Protection Act 1998 is the current UK law governing how the personal data of the country’s citizens is managed by any organisation, be it public or private, including charities.

After 20 years, UK data protection regulations are being updated with a new law, to make it more relevant to the way technology is used today and harmonise it with the EU’s General Data Protection Regulation (GDPR) that have come into force from Friday May 25th 2018. 

Personal data is any information relating to you, whether it relates to your private, professional, or public life. In the online environment, where vast amounts of personal data are shared and transferred around the globe instantaneously, it is increasingly difficult for people to maintain control of their personal information. This is where data protection comes in.

Data protection refers to the practices, safeguards, and rules put in place to protect your personal information and ensure that you remain in control of it. In short, you should be able to decide whether or not you want to share some information, who has access to it, for how long, for what reason, and be able to modify some of this information, and more.

Who owns data? Ownership involves determining rights and duties over property. The concept of data ownership is linked to one’s ability to exercise control over and limit the sharing of their own data. If one person records their observations on another person who owns those observations? The observer or the observed? What responsibilities do the observer and the observed have in relation to each other? 

There is also a growth in appreciation of “ data ethics” regarding undesirable handling of personal data, even if there is not a violation of the letter of the law. 

When you give your personal details to an organisation or individual, they have a duty to keep these details private and safe. This process is known as data protection. We refer to organisations or individuals who control the contents and use of your personal details as ‘data controllers’.

Many of us give information about ourselves to groups such as Government bodies, banks, insurance companies, medical professionals and telephone companies to use their services or meet certain conditions. Organisations or individuals can also get information about us from other sources. Under data protection law, you have rights regarding the use of these personal details and data controllers have certain responsibilities in how they handle this information.

But there is another principle that ‘private property’ may be coercively  and compulsorily acquired for a larger public purpose. This is how land is acquired for creation of educational Institutions, public hospitals or for building bullet trains. And private buses are requisitioned by the election commission in order to hold elections. Sometimes the stated ‘ public purpose’ may be questionable. 

By analogy, for reasons of national security, improved healthcare and other public good, the data of citizens may be compulsorily sought as in the Aadhar card. 

The balance between rights of individuals and national and social interest will evolve over time. 

Among many other questions that GDPR raises is of its impact on Machine learning in particular and data science in general. The short answer to this question is that, in practice, ML will not be prohibited in the EU after the GDPR goes into effect. 

It will, however, involve a significant compliance burden, which I’ll address shortly.

Technically, and misleadingly, however, the answer to this question actually appears to be yes, at least at first blush. 

The GDPR, as a matter of law, does contain a blanket prohibition on the use of automated decision-making, so long as that decision-making occurs without human intervention and produces significant effects on data subjects. 

In Chapter V of Ancient Law, Henry Sumner Maine characterizes the evolution towards progressive societies as a passage from status (an ascribed position) to contract (a voluntary stipulation).

In terms of the present age of Big Data, Machine Learning and learning algorithms, we might project that “ As societies progress, they move from authority to data”. 

Or articulated a bit differently from hierarchical human decision making to algorithmic decision making. 

If you want to know some more about data protection in different jurisdictions and the Implications of the European GDPR, you may join a FREE Whatsapp weekend learning course that will run on Saturday July 21st/Sunday July 22nd by following this link : https://chat.whatsapp.com/7AsfvFL17RF1jToIPEXYOZ

If this link does not work for any reason, please send a Whatsapp message to Prof MM Pant at +919810073724 or an e-mail to mmpant@gmail.com

About mmpant

Prof. M.M.Pant has a Ph.D in Computational Physics, along with a Professional Law Degree, and has been a practitioner in the fields of Law, IT enabled education and IT implementation. Drawing upon his experience in world class international institutions and having taught in various modes of Face-to-Face, Distance Learning and Technology Enhanced Training, Prof. Pant is now exploring the nature of institutions which will be successors to the IITs, which represented the 1960s, IIMs, which represented the 1970 and Open Universities which were the rage of 1980s & 90s. He believes that the convergence between various media and technologies would fundamentally alter the way learning would be created, packaged, and delivered to learners. His current activities are all directed toward actual implementation of these new age educational initiatives that transform education in the post Internet post WTO era.. Prof. Pant, has been a Former Pro-Vice Chancellor, Indira Gandhi National Open University (IGNOU) and has been on the faculty of IIT – Kanpur (the premier Engineering institution in India), MLNR Engineering College and Faculty & Visiting Professor - University of Western Ontario-Canada. He has been visiting scientist to research centers in Italy, England, Germany & Sweden and has delivered international lectures with about 80 papers published. During his association of almost 15 years with the IGNOU, Prof. Pant has served as the Director Computing and has been the Member of All Bodies (i.e. School boards, Academic council, Planning board, Finance committee and the Board of management). With his interest in Law, backed with practice of Law in a High Court, and his basic training in Science and IT, Prof. Pant has been particularly interested in the Cyber Law, Patent & trade mark issues, Intellectual Property Rights (IPR) issues etc. and has been involved with many activities, conferences on “Law & IT” Prof. Pant is presently; • Advisor to Media Lab Asia - Chairman of working group on ICT for Education, chairman of PRSG handling projects on ICT for education. • Lead Consultant for an ADB funded project for ICT in Basic Education in Uzbekistan • Member of the drafting Group for India’s National Policy on ICT in education • Chairman of the group creating books for class 11 and 12 students on ‘Computers and Communication Technology’ appointed by the NCERT • Preparing a ‘Theme Paper” for the NCTE in the area of ICT and Teacher Training • Advisor and mentor to several leading Indian and Multi-national Companies in the area of education. Prof. Pant has in the recent past been ; • Member – Board of Management – I I T, Delhi for 6 years (two consecutive terms) • One-man committee to create the Project Report & Legislation for Delhi IT-enabled Open University • Advisor to the Delhi Government on Asian Network of Major Cities Project (ANMC-21) distance learning project in association with Tokyo Metropolitan Government. • Chairman Board of Studies, All India Management Association With his mission to create and implement new business opportunities in the area of e-learning & learning facilitation, Prof. Pant has promoted Planet EDU Pvt. Ltd., as its Founder & Chairman, along with a team of highly experienced and skilled professionals from Education & Training, Operations, IT and Finance.
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