Legislation for Personal Data: Magna Carta or Highway Code?

Karl Popper is perhaps one of the most important thinkers from the 20th century. Not purely for his philosophy of science, but for giving a definitive answer to a common conundrum: “Which comes first, the chicken or the egg?”. He says that they were simply preceded by an ‘earlier type of egg’. I take this to mean that the answer is neither: they actually co-evolved. What do I mean by co-evolved? Well broadly speaking there once were two primordial entities which weren’t very chicken-like or egg-like at all, over time small changes occurred, supported by natural selection, rendering those entities unrecognisable from their origins into two of our most familiar foodstuffs of today.

I find the process of co-evolution remarkable, and to some extent unimaginable, or certainly it seems to me difficult to visualise the intermediate steps. Evolution occurs by natural selection: selection by the ‘environment’, but when we refer to co-evolution we are clarifying that this is a complex interaction. The primordial entities effect the environment around them, therefore changing the ‘rules of the game’ as far as survival is concerned. In such a convolved system certainties about the right action disappear very quickly.

What use are chickens and eggs when talking about personal data? Well, Popper used the question to illustrate a point about scientific endeavour. He was talking about science and reflecting on how scientific theories co-evolve with experiments. However, that’s not the point I’d like to make here. Co-evolution is very general, one area it arises is when technological advance changes society to such an extent that existing legislative frameworks become inappropriate. Tim Berners Lee has called for a Magna Carta for the digital age, and I think this is a worthy idea, but is it the right idea? A digital bill of rights may be the right idea in the longer run, but I don’t think we are ready to draft it yet. My own research is machine learning, the main technology underpinning the current AI revolution. A combination of machine learning, fast computers, and interconnected data means that the technological landscape is changing so fast that it is effecting society around us in ways that no one envisaged twenty years ago.

Even if we were to start with the primordial entities that presaged the chicken and the egg, and we knew all about the process of natural selection, could we have predicted or controlled the animal of the future that would emerge? We couldn’t have done. The chicken exists today as the product of its environmental experience, an experience that was unique to it. The end point we see is one of is highly sensitive to very small perturbations that could have occurred at the beginning.

So should we be writing legislation today which ties down the behaviour of future generations? There is precedent for this from the past. Before the printing press was introduced, no one would have begrudged the monks’ right to laboriously transcribe the books of the day. Printing meant it was necessary to protect the “copy rights” of the originator of the material. No one could have envisaged that those copyright laws would also be used to protect software, or digital music. In the industrial revolution the legal mechanism of ‘letters patent’ evolved to protect creative insight. Patents became protection of intellectual property, ensuring that inventors’ ideas could be shared under license. These mechanisms also protect innovation in the digital world. In some jurisdictions they are now applied to software and even user interface designs. Of course even this legislation is stretched in the face of digital technology and may need to evolve, as it has done in the past.

The new legislative challenge is not in protecting what is innovative about people, but what is commonplace about them. The new value is in knowing the nature of people: predicting their needs and fulfilling them. This is the value of interconnection of personal data. It allows us to make predictions about an individual by comparing him or her to others. It is the mainstay of the modern internet economy: targeted advertising and recommendation systems. It underpins my own research ideas in personalisation of health treatments and early diagnosis of disease. But it leads to potential dangers, particularly where the uncontrolled storage and flow of an individual’s personal information is concerned. We are reaching the point where some studies are showing that computer prediction of our personality is more accurate than that of our friends and relatives. How long before an objective computer prediction of our personality can outperform our own subjective assessment of ourselves? Some argue those times are already upon us. It feels dangerous for such power to be wielded unregulated by a few powerful groups. So what is the answer? New legislation? But how should it come about?

In the long term, I think we need to develop a set of rules and legislation, that include principles that protect our digital rights. I think we need new models of ownership that allow us to control our private data. One idea that appeals to me is extending data protection legislation with the right not only to view data held about us, but to also ask for it to be deleted. However, I can envisage many practical problems with that idea, and these need to be resolved so we can also enjoy the benefits of these personalised predictions.

As wonderful as some of the principles in the Magna Carta are, I don’t think it provides a good model for the introduction of modern legislation. It was actually signed under duress: under a threat of violent revolution. The revolution was threatened by a landed gentry, although the consequences would have been felt by all. Revolutions don’t always end well. They occur because people can become deadlocked: they envisage different futures for themselves and there is no way to agree on a shared path to different end points. The Magna Carta was also a deal between the king and his barons. Those barons were asking for rights that they had no intention of extending within their fiefdoms. These two characteristics: redistribution of power amongst a powerful minority, with significant potential consequences for the a disenfranchised majority, make the Magna Carta, for me, a poor analogy for how we would like things to proceed.

The chicken and the egg remind us that the actual future will likely be more remarkable than any of us can currently imagine. Even if we all seek a particular version of the future this version of the future is unlikely to ever exist in the form that we imagine. Open, receptive and ongoing dialogue between the interested and informed parties is more likely to bring about a societal consensus. But can this happen in practice? Could we really evolve a set of rights and legislative principles which lets us achieve all our goals? I’d like to propose that rather than taking as our example a mediaeval document, written on velum, we look to more recent changes in society and how they have been handled. In England, the Victorians may have done more than anyone to promote our romantic notion of the Magna Carta, but I think we can learn more by looking at how they dealt with their own legislative challenges.

I live in Sheffield, and cycle regularly in the Peak District national park. Enjoyment of the Peak Park is not restricted to our era. At 10:30 on Easter Monday in 1882 a Landau carriage, rented by a local cutler, was heading on a day trip from Sheffield to the village of Tideswell, in the White Peak. They’d left Sheffield via Ecclesall Road, and as they began to descend the road beneath Froggatt Edge, just before the Grouse Inn they encountered a large traction engine towing two trucks of coal. The Landau carriage had two horses and had been moving at a brisk pace of four and a half miles an hour. They had already passed several engines on the way out of Sheffield. However, as they moved out to pass this one, it let out a continuous blast of steam and began to turn across their path into the entrance of the inn. One of the horses took fright pulling the carriage up a bank, throwing Ben Deakin Littlewood and Mary Coke Smith from the carriage and under the wheels of the traction engine. I cycle to work past their graves every day. The event was remarkable at the time, so much so that is chiselled into the inscription on Ben’s grave.

The traction engine was preceded, as legislation since 1865 had dictated, by a boy waving a red flag. It was restricted to two and a half miles an hour. However, the boy’s role was to warn oncoming traffic. The traction engine driver had turned without checking whether the road was clear of overtaking traffic. It’s difficult to blame the driver though. I imagine that there was quite a lot involved in driving a traction engine in 1882. It turned out that the driver was also preoccupied with a broken wheel on one of his carriages. He was turning into the Grouse to check the wheel before descending the road.

This example shows how legislation can sometimes be extremely restrictive, but still not achieve the desired outcome. Codification of the manner in which a vehicle should be overtaken came later, at a time when vehicles were travelling much faster. The Landau carriage was overtaking about 100 meters after a bend. The driver of the traction engine didn’t check over his shoulder immediately before turning, although he claimed he’d looked earlier. Today both drivers’ responsibilities are laid out in the “Highway Code”. There was no “Mirror, Signal, Manoeuvre” in 1882. That came later alongside other regulations such as road markings and turn indicators.

The shared use of our road network, and the development of the right legislative framework might be a good analogy for how we should develop legislation for protecting our personal privacy. No analogy is ever perfect, but it is clear that our society both gained and lost through introduction of motorised travel. Similarly, the digital revolution will bring advantages but new challenges. We need to have mechanisms that allow for negotiated solutions. We need to be able to argue about the balance of current legislation and how it should evolve. Those arguments will be driven by our own personal perspectives. Our modern rules of the road are in the Highway Code. It lists responsibilities of drivers, motorcyclists, cyclists, mobility scooters, pedestrians and even animals. It gives legal requirements and standards of expected behaviour. The Highway Code co-evolved with transport technology: it has undergone 15 editions and is currently being rewritten to accommodate driverless cars. Even today we still argue about the balance of this document.

In the long term, when technologies have stabilised, I hope we will be able to distill our thinking to a bill of rights for the internet. But such a document has a finality about it which seems inappropriate in the face of technological uncertainty. Calls for a Magna Carta provide soundbites that resonate and provide rallying points. But they can polarise, presaging unhelpful battles. Between the Magna Carta and the foundation of the United States the balance between the English monarch and his subjects was reassessed through the English Civil War and the American Revolution. Wven tI don’t think we can afford such discord when drafting the rights of the digital age. We need mechanisms that allow for open debate, rather than open battle. Before a bill of rights for the internet, I think we need a different document. I’d like to sound the less resonant call for a document that allows for dialogue, reflecting concerns as they emerge. It could summarise current law and express expected standards of behaviour. With regular updating it would provide an evolving social contract between all the users of the information highway: people, governments, businesses, hospitals, scientists, aid organisations. Perhaps instead of a Magna Carta for the internet we should start with something more humble: the rules of the digital road.

This blog post is an extended version of an written for the Guardian’s media network: “Let’s learn the rules of the digital road before talking about a web Magna Carta”

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