Gry Hasselbalch and Pernille Tranberg, Data Ethics — The New Competitive Advantage

Gry Hasselbalch and Pernille Tranberg, Data Ethics — The New Competitive Advantage ‘Data ethics’ has become a buzzword in Brussels and elsewhere, where policymakers and practitioners have steered away from questions about the subject and form of data-processing regulation to more practical issues concerning the implementation of the General Data Protection Regulation (GDPR). This observation as well as numerous endorsements encountered on social media platforms have encouraged me to read ‘Data Ethics — The New Competitive Advantage’ written by Gry Hasselbalch and Pernille Tranberg. The authors of the book ‘Data Ethics — The New Competitive Advantage’ run ‘a politically independent ThinkDoTank based in Denmark with a European (and global) outreach’.1 The underlying aim of this think tank is ‘to promote data ethical products and services’ in ‘constructive and action-oriented’ way.2 It can be suggested that the book that is subject to a review in this contribution serves as a marketing tool for this think tank. This, of course, is a legitimate objective of the authors but it does not say a lot about the quality of the work that has been done in preparation for this book. Therefore, in upcoming paragraphs I will share my interpretation underlying the salient points of this book. The main argument of the book is that ‘data ethics’ can provide a competitive advantage for companies running business in the digital environment. The authors use numerous stories to explain, elaborate on and convey this claim to a reader in 13 chapters. The selected stories illustrate arguments advanced by the authors but should be read with a grain of salt as they may not always be wholly accurate. For example, in Chapter 5 titled ‘Privacy Charlatans’ the authors embrace Apple’s approach to users’ data and commitment to differential privacy, neglecting numerous cases when the company’s actions were in breach of users’ privacy.3 The first attempt to define the ambiguous term ‘data ethics’ can be found before delving in to the substance of the book. According to the authors, ‘[d]ata ethics is potential, new market growth, a sustainable strategy and the foundation of creative, innovative business processes’ (p 8). The authors are convinced that ‘[d]ata ethics must and will be a new compass to guide us’ and will have similar impact like environmental reporting for the environmentalist movement (p 9). While acknowledging that is an interesting claim to make, knowing that environmental reporting was a result of legal obligations introduced in the aftermath of the Bhopal disaster, I moved on to the section titled ‘What is data ethics?’4 This section instead of considering possible answers to the question put forward in the heading, suggests that ‘[e]thical companies in today’s big data era are doing more than just complying with data protection legislation. They also follow the spirit and vision of the legislation by listening closely to their customers’ (p 10). While wondering about what potential ‘ethical companies in today’s big data era’ the authors had in mind, I encountered numerous stories that had been widely and often intensely discussed within the circles of privacy and data protection experts in hope of finding a more elaborate definition or explanation of ‘data ethics’. Driven by a genuine interest in the topic, I got to Chapter 13, where the authors suggest that ‘[d]ata ethics is first and foremost about balancing the powers embedded in society’ (p 183). Unfortunately, the authors do not take the time to explain who should engage in such a balancing exercise. Later on in the book, the authors pick up on this argument and suggest that ‘technologists, academics, policymakers and businesses are revisiting cultural values and moral systems as they search for a new ethical framework for the digital age’ (pp 189–90). This consequently implies that the authors consider that everyone apart from individuals themselves should be in charge of ‘digital ethics’. Would the stakeholders listed by the authors (ie technologists, academics, policymakers, and businesses) create ‘data ethics’ that represent the preponderant interests of our society? To my disappointment, the book did not provide me with a meaningful explanation of what is ‘data ethics’, a buzzword included in the title of the book. Nonetheless, I would like to draw on the following conclusions that may be of interest for the ones who are considering of reading the book. First, the term ‘data ethics’ to a large extent entails requirements embedded in the European Union (EU) data protection framework. In their book, Gry Hasselbalch and Pernille Tranberg frequently make references to data protection principles, such as data minimization, data protection by design (Chapter 7, Section 4), security of the processing, and fair notice practices. The Data Ethical Strategy included in the Appendix of this book also supports this observation. For example, the list of areas for consideration kicks off with the principle of data minimization that is at the core of the EU data protection framework.5 Then, the section on ‘True Transparency’ entails objectives and rationale embedded in Articles 12–14 of the GDPR, governing the way information about data processing should be communicated to the individual whose data are being collected or processed.6 In particular, the authors suggest that ‘[a] data-ethical privacy policy should be easy to understand, honest’ and come in layered form (ie a longer and a shorter version) (p 194). This requirement in principle resembles the requirement to provide information about the processing to individuals whose data are being processed ‘in a concise, transparent, intelligible and easily accessible form, using clear and plain language’ and adapted to the age of those individuals.7 In the same section authors suggest that companies could make most out of privacy policies if they provide more information than required (p 194). Companies, for example, could explain their business model (‘tell their customers directly how they make money’ or ‘why it costs money to use your service’) (pp 193–94). In as much this may be considered to be an innovative suggestion, it can be argued that this idea resonates with the requirement to define purposes for which personal data are collected. Secondly, the authors consider anonymization, encryption (in particular, of communication) and differential privacy to be the main solutions to the existing problems and business’ tendency to abuse available data about users. It can be argued that by accentuating technological means to protect personal data, the authors deem technological solutions to constitute the second part of the ‘data ethics’ framework, in addition to the principles extracted from the EU data protection framework. Thirdly, a reader running through statements, which are written in easy language, may sound familiar and at first glance appear correct, has to be actively engaged in the reading exercise, question claims put forward by the authors and notice inconsistencies. For example, the authors explain that the theme of ‘data ethics’ has emerged in the context of digital technologies because ‘laws have not kept up with digital progress’, while a few lines above the debate over ‘data ethics’ was attributed to the societal debate on the impact of new technologies (p 189). Then, the authors make a strong claim that laws ‘include interpretations and exceptions, and legal grey areas created by the fast pace of technology [and that these laws] will create margins that may not always be in the individual’s, or for that matter the fair market’s, best interest’, without providing any arguments supporting this claim. Building on this assertion, the authors conclude that ‘data ethics’ is better suited to address ethical dilemmas (p 190). Fourthly, when encountering bold claims about legal requirements, one should rely on the existing legislation, including the GDPR. For example, the authors claim that ‘[p]reviously, there was no requirement for private companies to let customers know about data security breaches. But there is now. Companies and organizations must notify the national supervisory authority of serious data breaches as soon as possible, within 72 hours at the latest’(p 118). This is simply not accurate because Regulation 611/2013 required telecom providers to provide detailed information about personal data breaches.8 Then, the word ‘customers’ does not fully capture the scope of the obligation imposed in Article 33 of the GDPR, as ‘customers’ of a company may not necessarily include individuals whose data would have been subject to unauthorized access or unlawful alteration. Finally, the data breach notification obligation provides some flexibility as it requires ‘where feasible’ to notify the competent supervisory ‘not later than 72 hours after’ encountering a data breach. In cases where a notification would be made later, a controller should provide reasons explaining the delay.9 The other illustrative example could be the authors’ claim that ‘[d]ata controllers are required to prepare a report which evaluates the impact that data processing can have on an individuals’ rights and freedoms’ (p 118). In fact, Article 35 of the GDPR requires that a data protection impact assessment is carried out in cases ‘[w]here a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons.’10 Following up on these observations and on bold statements, such as ‘[t]echnology shows us what we could possibly do with data. Laws and regulations show us what we’re allowed to do. Ethics tells us what we should do’, it can be concluded that the books add little value to the current debates about the implementation of the GDPR (p 189). Fifthly, on several occasions the authors discuss employee data and employees’ access to customer data. The topics by the authors are too intertwined whereas each of them deserves a more heightened consideration. The authors suggest that ‘it may be legal for a company to monitor its employees’ emails’ and then questions of ‘is it ethically justifiable?’ Perhaps considering case law of the European Court on Human Rights could provide useful insights in response to this question.11 Finally, ‘data ethics’ has evolved into a theme for conferences, panels, various debates, discussions, and publications. Deep convictions about ‘data ethics’ presented by Gry Hasselbalch and Pernille Tranberg have been also echoed by others who consider it to be an ultimate solution ensuring individuals’ rights to protection of personal data and privacy in the digital environment, in particular, in applications and solutions based on Big Data.12 While, perhaps, ‘the data-ethical companies are the ones that do more than simply comply with data protection legislation’ (p 10), the discussions over the meaning of ‘digital ethics’ should be more systematic, structured, and carried out with research integrity in mind. This could be done by answering questions, such as the following: What is digital (or data) ethics? What limitations does it have? Who should define ‘data ethics’ and what are the risks of reliance on ‘digital ethics’ at this point in time? Do we indeed need to call a societal debate over ‘data ethics’? Finally, the question that we should also raise is: why don’t we try to comply with the existing (and recently updated) rules and legal requirements that already embed and represent ethical choices? The review was made possible thanks to the funding from the European Union’s Horizon 2020 Framework Programme for research and innovation under the CANVAS (Constructing an Alliance for Value-driven Cybersecurity) project, grant agreement no 700540. The author also thanks her supervisors, Gloria Gonzalez-Fuster and Serge Gutwirth, for their comments on an earlier draft. Footnotes 1 DATAETHICS <https://dataethics.eu/en/about/founders/> accessed 20 November 2017. 2 DATAETHICS <https://dataethics.eu/en/> accessed 20 November 2017. 3 See eg Wired, ‘Why and How Apple is Collecting Your Iphone Location Data’ (Wired, 21 April 2011) <https://www.wired.com/2011/04/apple-iphone-tracking/> accessed 20 November 2017. 4 Mary Graham and Catherine Miller, ‘Disclosure of Toxic Releases in the United States’ (2001) 43(8) Environment: Science and Policy for Sustainable Development 8. 5 The principle of data minimization can be found among the requirements of Data Protection Directive (see art 6.1(c)) as well as the GDPR (see art 5.1(c)). 6 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (GDPR) OJ L119/1. 7 GDPR (n 6) art 12.1. 8 Commission Regulation (EU) No 611/2013 of 24 June 2013 on the measures applicable to the notification of personal data breaches under Directive 2002/58/EC of the European Parliament and of the Council on privacy and electronic communications, OJ L 2, 173. 9 GDPR (n 6) art 33. 10 GDPR (n 6) art 35. 11 Bărbulescu v Romania, App no 61496/08 (ECtHR, 5 September 2017). 12 See eg Susan Etlinger and Jessica Groopman, ‘The Trust Imperative: A Framework for Ethical Data Use, A Market Definition Report’ (Altimeter, 25 June 2015); Jacob Metcalf, Emily F Keller and Danah Boyd, ‘Perspectives on Big Data, Ethics, and Society’ (Council for Big Data, Ethics, and Society, 2017) <http://bdes.datasociety.net/council-output/perspectives-on-big-data-ethics-and-society/> accessed 20 November 2017. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Data Privacy Law Oxford University Press

Gry Hasselbalch and Pernille Tranberg, Data Ethics — The New Competitive Advantage

International Data Privacy Law , Volume Advance Article (2) – Jan 16, 2018

Loading next page...
 
/lp/ou_press/gry-hasselbalch-and-pernille-tranberg-data-ethics-the-new-competitive-Dx0TV9Scml
Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com
ISSN
2044-3994
eISSN
2044-4001
D.O.I.
10.1093/idpl/ipx025
Publisher site
See Article on Publisher Site

Abstract

‘Data ethics’ has become a buzzword in Brussels and elsewhere, where policymakers and practitioners have steered away from questions about the subject and form of data-processing regulation to more practical issues concerning the implementation of the General Data Protection Regulation (GDPR). This observation as well as numerous endorsements encountered on social media platforms have encouraged me to read ‘Data Ethics — The New Competitive Advantage’ written by Gry Hasselbalch and Pernille Tranberg. The authors of the book ‘Data Ethics — The New Competitive Advantage’ run ‘a politically independent ThinkDoTank based in Denmark with a European (and global) outreach’.1 The underlying aim of this think tank is ‘to promote data ethical products and services’ in ‘constructive and action-oriented’ way.2 It can be suggested that the book that is subject to a review in this contribution serves as a marketing tool for this think tank. This, of course, is a legitimate objective of the authors but it does not say a lot about the quality of the work that has been done in preparation for this book. Therefore, in upcoming paragraphs I will share my interpretation underlying the salient points of this book. The main argument of the book is that ‘data ethics’ can provide a competitive advantage for companies running business in the digital environment. The authors use numerous stories to explain, elaborate on and convey this claim to a reader in 13 chapters. The selected stories illustrate arguments advanced by the authors but should be read with a grain of salt as they may not always be wholly accurate. For example, in Chapter 5 titled ‘Privacy Charlatans’ the authors embrace Apple’s approach to users’ data and commitment to differential privacy, neglecting numerous cases when the company’s actions were in breach of users’ privacy.3 The first attempt to define the ambiguous term ‘data ethics’ can be found before delving in to the substance of the book. According to the authors, ‘[d]ata ethics is potential, new market growth, a sustainable strategy and the foundation of creative, innovative business processes’ (p 8). The authors are convinced that ‘[d]ata ethics must and will be a new compass to guide us’ and will have similar impact like environmental reporting for the environmentalist movement (p 9). While acknowledging that is an interesting claim to make, knowing that environmental reporting was a result of legal obligations introduced in the aftermath of the Bhopal disaster, I moved on to the section titled ‘What is data ethics?’4 This section instead of considering possible answers to the question put forward in the heading, suggests that ‘[e]thical companies in today’s big data era are doing more than just complying with data protection legislation. They also follow the spirit and vision of the legislation by listening closely to their customers’ (p 10). While wondering about what potential ‘ethical companies in today’s big data era’ the authors had in mind, I encountered numerous stories that had been widely and often intensely discussed within the circles of privacy and data protection experts in hope of finding a more elaborate definition or explanation of ‘data ethics’. Driven by a genuine interest in the topic, I got to Chapter 13, where the authors suggest that ‘[d]ata ethics is first and foremost about balancing the powers embedded in society’ (p 183). Unfortunately, the authors do not take the time to explain who should engage in such a balancing exercise. Later on in the book, the authors pick up on this argument and suggest that ‘technologists, academics, policymakers and businesses are revisiting cultural values and moral systems as they search for a new ethical framework for the digital age’ (pp 189–90). This consequently implies that the authors consider that everyone apart from individuals themselves should be in charge of ‘digital ethics’. Would the stakeholders listed by the authors (ie technologists, academics, policymakers, and businesses) create ‘data ethics’ that represent the preponderant interests of our society? To my disappointment, the book did not provide me with a meaningful explanation of what is ‘data ethics’, a buzzword included in the title of the book. Nonetheless, I would like to draw on the following conclusions that may be of interest for the ones who are considering of reading the book. First, the term ‘data ethics’ to a large extent entails requirements embedded in the European Union (EU) data protection framework. In their book, Gry Hasselbalch and Pernille Tranberg frequently make references to data protection principles, such as data minimization, data protection by design (Chapter 7, Section 4), security of the processing, and fair notice practices. The Data Ethical Strategy included in the Appendix of this book also supports this observation. For example, the list of areas for consideration kicks off with the principle of data minimization that is at the core of the EU data protection framework.5 Then, the section on ‘True Transparency’ entails objectives and rationale embedded in Articles 12–14 of the GDPR, governing the way information about data processing should be communicated to the individual whose data are being collected or processed.6 In particular, the authors suggest that ‘[a] data-ethical privacy policy should be easy to understand, honest’ and come in layered form (ie a longer and a shorter version) (p 194). This requirement in principle resembles the requirement to provide information about the processing to individuals whose data are being processed ‘in a concise, transparent, intelligible and easily accessible form, using clear and plain language’ and adapted to the age of those individuals.7 In the same section authors suggest that companies could make most out of privacy policies if they provide more information than required (p 194). Companies, for example, could explain their business model (‘tell their customers directly how they make money’ or ‘why it costs money to use your service’) (pp 193–94). In as much this may be considered to be an innovative suggestion, it can be argued that this idea resonates with the requirement to define purposes for which personal data are collected. Secondly, the authors consider anonymization, encryption (in particular, of communication) and differential privacy to be the main solutions to the existing problems and business’ tendency to abuse available data about users. It can be argued that by accentuating technological means to protect personal data, the authors deem technological solutions to constitute the second part of the ‘data ethics’ framework, in addition to the principles extracted from the EU data protection framework. Thirdly, a reader running through statements, which are written in easy language, may sound familiar and at first glance appear correct, has to be actively engaged in the reading exercise, question claims put forward by the authors and notice inconsistencies. For example, the authors explain that the theme of ‘data ethics’ has emerged in the context of digital technologies because ‘laws have not kept up with digital progress’, while a few lines above the debate over ‘data ethics’ was attributed to the societal debate on the impact of new technologies (p 189). Then, the authors make a strong claim that laws ‘include interpretations and exceptions, and legal grey areas created by the fast pace of technology [and that these laws] will create margins that may not always be in the individual’s, or for that matter the fair market’s, best interest’, without providing any arguments supporting this claim. Building on this assertion, the authors conclude that ‘data ethics’ is better suited to address ethical dilemmas (p 190). Fourthly, when encountering bold claims about legal requirements, one should rely on the existing legislation, including the GDPR. For example, the authors claim that ‘[p]reviously, there was no requirement for private companies to let customers know about data security breaches. But there is now. Companies and organizations must notify the national supervisory authority of serious data breaches as soon as possible, within 72 hours at the latest’(p 118). This is simply not accurate because Regulation 611/2013 required telecom providers to provide detailed information about personal data breaches.8 Then, the word ‘customers’ does not fully capture the scope of the obligation imposed in Article 33 of the GDPR, as ‘customers’ of a company may not necessarily include individuals whose data would have been subject to unauthorized access or unlawful alteration. Finally, the data breach notification obligation provides some flexibility as it requires ‘where feasible’ to notify the competent supervisory ‘not later than 72 hours after’ encountering a data breach. In cases where a notification would be made later, a controller should provide reasons explaining the delay.9 The other illustrative example could be the authors’ claim that ‘[d]ata controllers are required to prepare a report which evaluates the impact that data processing can have on an individuals’ rights and freedoms’ (p 118). In fact, Article 35 of the GDPR requires that a data protection impact assessment is carried out in cases ‘[w]here a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons.’10 Following up on these observations and on bold statements, such as ‘[t]echnology shows us what we could possibly do with data. Laws and regulations show us what we’re allowed to do. Ethics tells us what we should do’, it can be concluded that the books add little value to the current debates about the implementation of the GDPR (p 189). Fifthly, on several occasions the authors discuss employee data and employees’ access to customer data. The topics by the authors are too intertwined whereas each of them deserves a more heightened consideration. The authors suggest that ‘it may be legal for a company to monitor its employees’ emails’ and then questions of ‘is it ethically justifiable?’ Perhaps considering case law of the European Court on Human Rights could provide useful insights in response to this question.11 Finally, ‘data ethics’ has evolved into a theme for conferences, panels, various debates, discussions, and publications. Deep convictions about ‘data ethics’ presented by Gry Hasselbalch and Pernille Tranberg have been also echoed by others who consider it to be an ultimate solution ensuring individuals’ rights to protection of personal data and privacy in the digital environment, in particular, in applications and solutions based on Big Data.12 While, perhaps, ‘the data-ethical companies are the ones that do more than simply comply with data protection legislation’ (p 10), the discussions over the meaning of ‘digital ethics’ should be more systematic, structured, and carried out with research integrity in mind. This could be done by answering questions, such as the following: What is digital (or data) ethics? What limitations does it have? Who should define ‘data ethics’ and what are the risks of reliance on ‘digital ethics’ at this point in time? Do we indeed need to call a societal debate over ‘data ethics’? Finally, the question that we should also raise is: why don’t we try to comply with the existing (and recently updated) rules and legal requirements that already embed and represent ethical choices? The review was made possible thanks to the funding from the European Union’s Horizon 2020 Framework Programme for research and innovation under the CANVAS (Constructing an Alliance for Value-driven Cybersecurity) project, grant agreement no 700540. The author also thanks her supervisors, Gloria Gonzalez-Fuster and Serge Gutwirth, for their comments on an earlier draft. Footnotes 1 DATAETHICS <https://dataethics.eu/en/about/founders/> accessed 20 November 2017. 2 DATAETHICS <https://dataethics.eu/en/> accessed 20 November 2017. 3 See eg Wired, ‘Why and How Apple is Collecting Your Iphone Location Data’ (Wired, 21 April 2011) <https://www.wired.com/2011/04/apple-iphone-tracking/> accessed 20 November 2017. 4 Mary Graham and Catherine Miller, ‘Disclosure of Toxic Releases in the United States’ (2001) 43(8) Environment: Science and Policy for Sustainable Development 8. 5 The principle of data minimization can be found among the requirements of Data Protection Directive (see art 6.1(c)) as well as the GDPR (see art 5.1(c)). 6 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (GDPR) OJ L119/1. 7 GDPR (n 6) art 12.1. 8 Commission Regulation (EU) No 611/2013 of 24 June 2013 on the measures applicable to the notification of personal data breaches under Directive 2002/58/EC of the European Parliament and of the Council on privacy and electronic communications, OJ L 2, 173. 9 GDPR (n 6) art 33. 10 GDPR (n 6) art 35. 11 Bărbulescu v Romania, App no 61496/08 (ECtHR, 5 September 2017). 12 See eg Susan Etlinger and Jessica Groopman, ‘The Trust Imperative: A Framework for Ethical Data Use, A Market Definition Report’ (Altimeter, 25 June 2015); Jacob Metcalf, Emily F Keller and Danah Boyd, ‘Perspectives on Big Data, Ethics, and Society’ (Council for Big Data, Ethics, and Society, 2017) <http://bdes.datasociety.net/council-output/perspectives-on-big-data-ethics-and-society/> accessed 20 November 2017. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

International Data Privacy LawOxford University Press

Published: Jan 16, 2018

There are no references for this article.

You’re reading a free preview. Subscribe to read the entire article.


DeepDyve is your
personal research library

It’s your single place to instantly
discover and read the research
that matters to you.

Enjoy affordable access to
over 18 million articles from more than
15,000 peer-reviewed journals.

All for just $49/month

Explore the DeepDyve Library

Search

Query the DeepDyve database, plus search all of PubMed and Google Scholar seamlessly

Organize

Save any article or search result from DeepDyve, PubMed, and Google Scholar... all in one place.

Access

Get unlimited, online access to over 18 million full-text articles from more than 15,000 scientific journals.

Your journals are on DeepDyve

Read from thousands of the leading scholarly journals from SpringerNature, Elsevier, Wiley-Blackwell, Oxford University Press and more.

All the latest content is available, no embargo periods.

See the journals in your area

DeepDyve

Freelancer

DeepDyve

Pro

Price

FREE

$49/month
$360/year

Save searches from
Google Scholar,
PubMed

Create lists to
organize your research

Export lists, citations

Read DeepDyve articles

Abstract access only

Unlimited access to over
18 million full-text articles

Print

20 pages / month

PDF Discount

20% off