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#NAMA: Anja Kovacs on the problems with India’s report on non-personal data governance framework

“[The Non-Personal Data Governance Framework] thinks it’s relevant to have a government body to be the trustee for the community’s data, which in practice, transfers only more power to the state rather than to the community, as well as the politicising the concept,” said Anja Kovacs, director of the Internet Democracy Project. Kovacs also pointed out that the report released by the committee has other flaws including that it doesn’t question the idea of data collection and looking at data as a resource, and that it doesn’t address the issue of collective privacy well enough.

Kovas was speaking at MediaNama’s discussion on the Governance of Non-Personal Data held on August 6 and 7. The discussion was held with support from Facebook and FTI Consulting.

‘The report fails to recognise the dynamics of surveillance capitalism’

Surveillance capitalism: The report is based on a number of false assumptions and out of these is a failure to recognise the dynamics of what Soshana Zuboff has called surveillance capitalism. Whether it’s driven by private or private entities or by the state surveillance capitalism refers to the unbridled datafication of even the most intimate aspects of our lives, and the fact that our entire lives are basically being reconfigured to fit into the datafication model.

This dynamic has been criticised for the tremendously negative impact that it has on people. In particular, what is criticised is that our governments and private companies are not only using this data to understand our behaviour, but also to actually steer it. And so increasingly, as persons and our bodies what we become are instruments for the purpose of others, rather than the means in our own right.

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Data as a resource is a flawed argument: Central to this debate is a description of data as a resource, because it disconnects data from our persons and our bodies, as the report does as well. In practice, this is not how data is experienced, nor how it is approached, actually, by those who drive these drives to collect data. If you look for example, at quarantine apps in the context of COVID-19, you will see that these use GPS data not to control the data but to control the body of the person who’s being watched and those who are watching Also experience it in that way.

Whether directly or indirectly relevant to us as people, data is not just a resource, it is also in some way embodied, and to develop policies that will actually protect the rights of people going forward. Fundamentally, this needs to be taken into account.

The paper doesn’t question the practice of data collection: The report talks about data as a resource consistently, and it also portrays that resources are central to the betterment of circumstances in the nation, Kovacs said. However, is the “deep datafication” that we’re all experiencing right now of any social and economic public value in the first place?” she asked.

“I am not trying to say here that there won’t be social and public value to data. But, the dynamics of surveillance capitalism work, as a whole, against social and public interests, and not in favour of them. That is because surveillance capitalism and datafication actually privileges particular forms of knowledge over others, as the space to be outside of datafication shrinks. This cost of datafication for social input and public interest is not acknowledged, let alone addressed In the paper.” — Anja Kovacs.

The definition of non-personal data is too encompassing: “The description of the category of non-personal data in the paper actually encompasses a wide range of data. So it covers anonymised data about our health, about agricultural crops on a farmer’s field, and even weather data. While it is common around the world to group all these different categories, it’s nevertheless problematic because it doesn’t allow us to recognise the distinctives harms that can come to people

The problem with consent mechanism: Consent mechanisms in place at the moment are not intended to put us in control, Kovacs said, adding, “instead, they are intended to legitimise the transfer of control over our data and thus increasingly, the control we have over our bodies is actually applied to others via government or companies”.

The report currently says that a data principal should also provide consent for anonymisation and usage of this anonymised data while providing consent for collection and usage of their personal data. However, Kovacs said that unless larger mechanisms, such as third-party data transfers aren’t questioned, consent becomes merely an “order clause”. “As long as these larger mechanisms [such as third party transfers] aren’t questioned, asking consent to share anonymised data just becomes an order clause in the adhesion contracts that we are asked to sign, that ultimately work against and not in favour of people’s autonomy and self-determination. Really such a proposal to ask for anonymised consent would only work on a case by case basis,” she said.

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The report doesn’t address collective privacy well enough: Kovacs said that if the intent of the report with collective privacy was to empower communities, it hasn’t been done effectively, “because at the most fundamental level, we should ask whether such data should be collected so widely in the first place”. “Will it also include data that is being derived? Why should communities only have recourse after the fact, rather than also control beforehand, in terms of what is collected?” she asked. “It is a mistake to make a distinction between personally identifiable data and anonymised data,” she added.

Community interest is not necessarily public interest: “By aligning the public interest and community interest, as is being done here, we make the mistake,” Kovacs said. “If you look at the field of development community development became a very powerful stream for a very specific reason — it was a recognition of the fact that trickle-down versions of development often fail to reach the most marginalised, and community development was then an attempt to ensure that they too were included”, she added. However, she pointed out that the community development tool was “no panacea because as feminists pointed out, within communities too, there are power relations, and unless these are addressed in creative and proactive ways, the most marginalised within marginalised communities will continue to be left out”.

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