Data Trust Readings
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Title
1
Data Trusts: What, How, Why
2
Data Trusts and Defining Property
3
The Basics of Private and Public Data Trusts
4
What Is a Data Trust?
5
The Key Models for a Legal Data Commons
6
A Data Commons for Law
7
How can we build a Data Commons for Law?
8
Privacy as Commons: Case Evaluation Through the Governing Knowledge Commons Framework
9
Data Trusts Ethics, Architecture and Governance for Trustworthy Data Stewardship
10
Bottom-up data Trusts: disturbing the ‘one size fits all’ approach to data governance
11
Reclaiming Data Trusts
12
When One Affects Many: The Case For Collective Consent
13
Data Portability, Federation and Consent
14
Private and Common Property Rights
15
Developing a Transparent, Participant-Navigated Electronic Informed Consent for Mobile-Mediated Research
16
Privacy as a Public Good
17
Polycentric Systems as One Approach for Solving Collective-Action Problems
18
Building Trust to Solve Commons Dilemmas: Taking Small Steps to Test an Evolving Theory of Collective Action
19
Strengthening Privacy for the Digital Age
20
Wanted: Data Stewards
21
Building Trust Through Data Foundations
22
Stateless Trusts
23
The Compatibility of the trust with the civil law notion of property
24
Legal Duties of Fiduciaries
25
Data Ownership
26
Public Goods and Public Choices
27
What do we mean by data institutions?
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Author
Synopsis
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Type
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Personal Notes
Anouk Ruhaak
This article puts forward the concept of data trusts as a way to claw back some control over the digital utilities that we rely on for our everyday lives. A data trust is a structure whereby data is placed under the control of a board of trustees with a fiduciary responsibility to look after the interests of the beneficiaries — you, me, society. Using them offers all of us the chance of a greater say in how our data is collected, accessed and used by others. This goes further than limiting data collecting and access to protect our privacy; it promotes the beneficial use of data, and ensures these benefits are widely felt across society In a sense, data trusts are to the data economy what trade unions are to the labour economy.
Governance
Article
https://medium.com/@anoukruhaak/data-trusts-why-what-and-how-a8b53b53d34
Core reading
Ben McFarlane
Why data does not need to be considered property in order for data trusts to be relevant. Instead, we look at data rights as the 'asset' held by the trust.
Economics
Law
https://www.law.ox.ac.uk/research-and-subject-groups/property-law/blog/2019/10/data-trusts-and-defining-property
Core reading
Benjamin Wong
J.E. Penner
Jeremiah Lau Jia Jun
The term 'data trust' has recently come into circulation to denote some kind of legal governance structure for the management of data, in particular digital databases, but there is much uncertainty and confusion about what a data trust is supposed to be, legally speaking. This paper examines the nature of data as a possible trust asset, and concludes that the traditional trust, the historical creation of English Equity jurisprudence and now found around the world, is a perfectly sensible vehicle for the management of data, in particular the management of combined datasets for both private and charitable, in particular educational, purposes. The paper also considers the data protection issues that arise in relation to data trusts.
Law
Governance
Academic
Article
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3458192
Core reading
Bianca Wiley
Sean McDonald
When used for governance, data trusts can steward, maintain and manage how data is used and shared — from who is allowed access to it, and under what terms, to who gets to define the terms, and how. They can involve a number of approaches to solving a range of problems, creating different structures to experiment with governance models and solutions in an agile way.
Governance
Law
Article
https://www.cigionline.org/articles/what-data-trust
Core reading
Jorge Gabriel Jiménez
Jameson Dempsey
Margaret Hagan
How might we harness available data from legal aid organizations, courts, legal technology companies, and others to enable research and development that promotes access to justice?
Governance
Law
Article
https://medium.com/legal-design-and-innovation/a-data-commons-for-law-a8ca365d10fe
Core reading
Jorge Gabriel Jiménez
Jameson Dempsey
Margaret Hagan
How might we harness available data from legal aid organizations, courts, legal technology companies, and others to enable research and development that promotes access to justice?
Governance
Economics
Article
Core reading
Jorge Gabriel Jiménez
Jameson Dempsey
Margaret Hagan
How might we harness available data from legal aid organizations, courts, legal technology companies, and others to enable research and development that promotes access to justice?
Governance
Law
Article
https://medium.com/legal-design-and-innovation/how-can-we-build-a-data-commons-for-law-165be97adeca
Core reading
Katherine Standburg
Madelyn Sanfilippo
Brett Frischmann
Conceptualizing privacy as information flow rules-in-use constructed within a commons governance arrangement, we adapt the Governing Knowledge Commons (GKC) framework to study the formal and informal governance of information flows. We incorporate Helen Nissenbaum’s “privacy as contex- tual integrity” approach, defining privacy in terms of contextually appropriate flows of personal information. While Nissenbaum’s framework treats contex- tual norms as largely exogenous and emphasizes their normative valence, the GKC framework provides a systematic method to excavate personal informa- tion rules-in-use that actually apply in specific situations and interrogate gov- ernance mechanisms that shape rules-in-use. The GKC framework thus directs attention beyond information transmission principles to a broader spectrum of rules-in-use for personal information and supports consideration of procedural legitimacy. After discussing how the GKC framework can enrich privacy research, we explore empirical evidence for contextual integrity as governance within the GKC framework through meta-analysis of previous knowledge commons case studies, revealing three governance patterns within the observed rules-in-use for personal information flow. Though constrained by existing literature, our theo- retical analysis provides strong justification for a new research agenda using the GKC framework to explore privacy as governance. We conclude by discussing potential implications for policy-makers of viewing privacy through an informa-
Governance
Academic
Economics
Article
Core reading
Kieron O’Hara
The paper addresses four areas.1. Trust and trustworthiness.With regard to trust, the aims of data trusts are twofold. First, data trusts are intended to define a certain level of trustworthybehaviour for data science. Second, they are intended to help align trust and trustworthiness, so we trust all and only trustworthy actors. The appropriate form of trust is based not on rules, but on social licenceto operate.2. EthicsAn appropriate ethical regime will help create and support a social licence. Hence a data trust must generate a meaningful ethical codefor its members. This will vary, depending on whose trust the data trust is intended to solicit. However, the code should constrain all who operate within it. Hence a data trust is expected to have a membership model, and all the members of the trust would respect the ethical code when acting within the model.One possible example for the foundation of an ethical code is proposed in the paper: the Anonymisation Decision-Making Framework(ADF), proposed by UKAN.3. ArchitectureThe data trust might not actually have an architecture as such –it might be merely a code of governance. However, this paper discusses one possible architecture, based on the Web Observatory developed at Southampton University, to create a Data Trust Portal. The architecture allows data to be discoveredand used, promoting accountabilityand transparency, without the data leaving the hands of data controllers. A data trust is not a data store.4. Legal statusThe paper sets out the manifold reasons why a data trust cannot be a trust in a legal sense. However, it takes inspiration from the notion of a legal trust, and several instances of this are also set out. The key issue is defining the set of beneficiaries, and defining what their rightswithin the trust will be. Again, the appropriate set of beneficiaries will depend upon the set of agents whose trust is to be solicited by the data trust.
Law
Governance
Tech Infrastructure
Whitepaper
https://eprints.soton.ac.uk/428276/1/WSI_White_Paper_1.pdf
Core reading
Neal Lawrence
Sylvie Delacroix
From the friends we make to the foods we like, via our shopping and sleeping habits, most aspects of our quotidian lives can now be turned into machine-readable data points. For those able to turn these data points into models predicting what we will do next, this data can be a source of wealth. For those keen to replace biased, fickle human decisions, this data—sometimes misleadingly—offers the promise of automated, increased accuracy. For those intent on modifying our behaviour, this data can help build a puppeteer’s strings. As we move from one way of framing data governance challenges to another, salient answers change accordingly. Just like the wealth redistribution way of framing those challenges tends to be met with a property-based, ‘it’s our data’ answer, when one frames the problem in terms of manipulation potential, dignity-based, human rights answers rightly prevail (via fairness and transparency-based answers to contestability concerns). Positive data-sharing aspirations tend to be raised within altogether different conversations from those aimed at addressing the above concerns. Our data Trusts proposal challenges these boundaries.
Governance
Law
Academic
Article
https://academic.oup.com/idpl/article/9/4/236/5579842
Core reading
Sean McDonald
For most people, “data trust” is a new term. Yet, over the past year, it has been increasingly and frequently referenced in technology and policy circles. This quick move out of obscurity — driven at least in part by Sidewalk Toronto’s proposal to use a civic data trust as part of their smart city development — has inspired a small explosion of documents taking a position on what, exactly, a data trust is. Data trusts, like any tool with the potential to affect power, are occupying a politically contested space, and the private sector is taking note too; a consulting and software market focused on trusts is quickly emerging. As a result, the public dialogue is being shaped by large, well-financed interests trying to maximize data sharing. But, large-scale privately-driven data sharing is not the only way — or even the most important way — to use data trusts in the public interest, and those practices certainly shouldn’t define the policy environment around fiduciary data governance.
Governance
Article
https://www.cigionline.org/articles/reclaiming-data-trusts
Core reading
Anouk Ruhaak
When we leave it to each of us to individually decide who we want to give access to our data, we all loose. Here are my thoughts on what collective approaches to consent might look like.
Governance
Consent
Article
https://foundation.mozilla.org/en/blog/when-one-affects-many-case-collective-consent/
Background
Anouk Ruhaak
Joshua Mckenty
This article considers the preconditions for interoperable data trusts. What mechanisms and infrastructure need to be in place to realize true portability and federation?
Tech Infrastructure
Article
https://www.centerfordigitalcommons.org/privacy/consent/2019/07/03/data-portability.html
Background
Charlotte Hess
Elenor Ostrom
The relative advantages of private property and common property for the efficiency, equity, and sustainability of natural resource use patterns have long been debated in the legal and economics literatures. The debate has been clouded by a troika of confusions that relate to the difference between (1) common-property and open-access regimes, (2) common-pool resources and common-property regimes, and (3) a resource system and the flow of resource units. A property right is an enforceable authority to undertake particular actions in specific domains. The rights of access, withdrawal, management, exclusion, and alienation can be separately assigned to different individuals as well as being viewed as a cumulative scale moving from the minimal right of access through possessing full ownership rights. Some attributes of common-pool resources are conducive to the use of communal proprietorship or ownership and others are conducive to individual rights to withdrawal, management, exclusion and alienation. There are, however, no panaceas! No institutions generate better outcomes for the resource and for the users under all conditions. Many of the lessons learned from the operation of communal property regimes related to natural resource systems are theoretically relevant to understanding of a wide diversity of property regimes that are extensively used in modern societies.
Law
Economics
Academic
Article
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1936062
Background
Christine Suver
Megan Doerr
John Wilbanks
Sage Bionetworks has developed a novel multi-media approach to addressing transparency and comprehension within electronic informed consent (eConsent) for app-mediated research studies. We deployed this eConsent process in minimal-risk research studies. Here we describe the rationale for the framework selected and best practice for application of the framework in other clinical studies.
Consent
Tech Infrastructure
Article
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2769129
Background
Christoph Engel
Joshua Fairfield
Privacy is commonly studied as a private good: my personal data is mine to protect and control, and yours is yours. This conception of privacy misses an important component of the policy problem. An individual who is careless with data exposes not only extensive information about herself, but about others as well. The negative externalities imposed on nonconsenting outsiders by such carelessness can be productively studied in terms of welfare economics. If all relevant individuals maximize private benefit, and expect all other relevant individuals to do the same, neoclassical economic theory predicts that society will achieve a suboptimal level of privacy. This prediction holds even if all individuals cherish privacy with the same intensity. As the theoretical literature would have it, the struggle for privacy is destined to become a tragedy. But according to the experimental public-goods literature, there is hope. Like in real life, people in experiments cooperate in groups at rates well above those predicted by neoclassical theory. Groups can be aided in their struggle to produce public goods by institutions, such as communication, framing, or sanction. With these institutions, communities can manage public goods without heavy-handed government intervention. Legal scholarship has not fully engaged this problem in these terms. In this Article, we explain why privacy has aspects of a public good, and we draw lessons from both the theoretical and the empirical literature on public goods to inform the policy discourse on privacy.
Governance
Consent
Academic
Article
Background
Elenor Ostrom
This chapter reviews studies of polycentric governance systems in metropolitan areas and for managing common-pool resources.
Economics
Governance
Academic
Book chapter
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1304697
Background
Elenor Ostrom
Problems of the commons exist in a wide variety of settings ranging in size and complexity from the family (e.g., the household budget and the kitchen sink) to the global scale (e.g., loss of biodiversity and global warming). Game theory is a useful theoretical tool for representing a simplified, core social dilemma facing a set of individuals sharing a commons. Game theorists, who assume that individuals base decisions on immediate returns to self, frequently use the Prisoners' Dilemma game to represent the problem of the commons. The individuals in such a game are assumed to have complete information about the strategy space they face and the outcomes that will be obtained depending on their own and others' actions. On the other hand, the pure theory is about individuals who do not know one another, do not share a common history, and cannot communicate with one another. In this model, game theory predicts that individuals jointly using a commons will overharvest, leading to Hardin's "Tragedy of the Commons."
Economics
Governance
Academic
Article
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1304695
Background
Government of Canada
Consent
Governance
Policy Paper
https://www.ic.gc.ca/eic/site/062.nsf/eng/h_00107.html
Background
GovLab
This paper is meant to inform the on-going exploration of how to enable systematic, sustainable, and responsible re-use of data through cross-sector data collaboration in the public interest (often called Data for Good). Data stewards build trust between organizations, agilely creating relationships between leaders from different sectors and backgrounds. Specifically, the position paper seeks to outline the roles and responsibilities of the emergent data steward profession. It is intended to support data-holding businesses and public institutions to create and promote data stewards in the public and private sectors; and to establish a network of these data stewards—as recently recommended by the High Level Expert Group to the European Commission on Business-to-Government Data Sharing.
Governance
Policy Paper
http://www.thegovlab.org/static/files/publications/wanted-data-stewards.pdf
Background
Laura Carmichael
Sophie Stalla-Bourdillon
Alexsis Wintour
This white paper sets out how to embodya Data Governance Model which builds trust, particularly when used with large group data sharing, within and between different organisationsthrough the legal structure of a Data Foundationin the Channel Islands.
Law
Governance
Whitepaper
https://cdn.southampton.ac.uk/assets/imported/transforms/content-block/UsefulDownloads_Download/69C60B6AAC8C4404BB179EAFB71942C0/White%20Paper%202.pdf
Background
Lionel Smith
This paper explores different understandings of the interaction of private international law with the law of trusts, and particularly, the question whether a settlor should have complete freedom to choose the law governing her trust. If such freedom is granted, the settlor may not care whether or to what extent her own legal system has a trust; she merely chooses one that does, and in particular she may choose the one that offers the features that best suit her particular wishes. In some Continental countries, this is indeed possible due to the ways in which they have brought into force the Hague Trusts Convention. The author examines a range of approaches to settlor autonomy, and concludes by suggesting that full settlor autonomy as to the governing law is not necessarily appropriate in relation to trusts. A trust has a whole range of third-party effects, and so the arguments that justify party autonomy in relation to the choice of governing law for contracts do not clearly apply to trusts.
Law
Book chapter
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2221537
Background
Paul Matthews
Law
Book chapter
https://www.cambridge.org/core/books/worlds-of-the-trust/compatibility-of-the-trust-with-the-civil-law-notion-of-property/C49BED4275A21F3F482685962452DE63
Background
Tamar Frankel
Legal Duties of Fiduciaries examines the structure, principles, themes and objectives of fiduciary law. Law is populated by fiduciaries. They appear in contract, tort, corporate law, agency, partnership, criminal law, environmental law, employment law, property and procedure, and constitutional law. Like family members, fiduciaries are similar yet distinct. Rarely are fiduciaries viewed as a group in a systematic manner. The purpose of this book is to study them together and examine fiduciary law's reach and its limits as one category.
Law
Book
https://www.goodreads.com/book/show/16209924-legal-duties-of-fiduciaries
Background
Teresa Scassa
The rapid expansion of the data economy raises serious questions about who “owns” data, and what data “ownership” entails. In most jurisdictions, data that are kept confidential can be protected as confidential information. However, such data are vulnerable to exposure through hacking or leaking by third parties. In many instances, significant stores of data cannot be kept confidential, and protection must be sought elsewhere. Copyright law has long treated facts as being in the public domain, but will provide protection for compilations of facts that meet the threshold for “originality.” Such protection is considered to be “thin,” as it does not extend to the underlying facts, applying only to their original selection or arrangement. In the European Union, database rights offer a more robust protection for compilations of data, but they also fall short when it comes to protecting the facts that make up such compilations. Debates over ownership rights in data have been heating up. In Europe, policy makers have raised the possibility of creating sui generis ownership rights in data. In Canada, a recent court decision has raised the interesting question of whether facts and data should be treated differently in copyright law, offering a far more robust protection for data than for facts. In addition to these developments, Europe’s new General Data Protection Regulation also appears to vest certain rights in data subjects through the newly introduced concept of data portability. If data are capable of ownership, either through a sui generis right or copyright law, this raises important questions about how to strike a balance between the rights of data “owners” and the public interest in access to and reuse of data. This paper will explore the legal bases for claims of ownership of data, the extent of the public interest in access to and use of data, and the areas in which public policy development is required to address the changing needs of the data economy and society.
Law
Academic
Article
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3251542
Background
Vincent Ostrom
Elenor Ostrom
A new mode of analysis for dealing with the organization and delivery of public goods and services has developed over the last two decades. This mode of analysis, identified with public choice theory, involves the application of economic reasoning to nonmarket decisionmaking. A key element in the analysis turns upon the nature of goods and services. Characteristics which pertain to exclusion and jointness of use can be arrayed to define different types of goods and services. A public good is defined as one which is not subject to exclusion and is subject to jointness in its consumption or use. Characteristics of nonexclusion and jointness of consumption or use, create situations in which market arrangements may fail to meet individual demands for public goods. Special forms of governmental or quasi-governmental organization are required to deal with these contingencies. The problems, however, occur largely in relation to the organi- zation of collective consumption. As long as appropriate collective consumption units are organized, several alternative options can be used for the production and delivery of public goods and services. These options include private [8] suppliers as well as governmental agencies serving as suppliers. Where collective consumption is organized apart from production in a public economy, market-like arrangements can exist among producers and collective consumption units. Relations among such units can be conceptualized as forming public service industries in which multiple units coordinate their efforts to supply a particular type of good or service to a community of users. Where competitive pressures are maintained and effective mechanisms for conflict resolution are available, public choice theory suggests that public service industries characterized by multiplicity and overlap, will be more efficient and responsive to user demands than highly integrated governmental monopolies. Public economies that are open to competitive supply of public services by private enterprises are likely to be more efficient than public economies which foreclose such competitive opportunities.
Governance
Economics
Academic
Article
Background
Jeni Tennison
What defines a data institution, and what constitutes one?
Governance
Article
https://theodi.org/article/what-do-we-mean-by-data-institutions/
Defintions
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