Monday, May 20, 2024

Deploy design principles for effective data governance

The main challenge with data governance is effective enforcement. Our approach has been to pass laws that constrain the amount of data in circulation and the uses to which it can be put. We did so in the belief that all it takes to protect individual rights is to limit the volume of data in circulation and get businesses to agree to use it narrowly.

This approach has, however, been unsuccessful. Modern businesses are aware of the benefits that accrue to them if they maximize the data under their control. As a result, their incentives are oriented in exactly the opposite direction of where these laws want them to move. This is why modern businesses are constantly trying to find ways around these regulations—stretching the limits of how much data can be collected and the purposes for which they will be used.

Laws are ineffectual when there are strong incentives to evade them. Since they have to be expressed in words, businesses can choose to interpret them in ways that skirt around the edges of what is permissible—to continually increase the ways in which data can be monetized. Regulators, on the other hand, are constantly playing catch-up, trying to close these loopholes, even though they know that for every one they close, a new one will pop up.

It is perhaps in response to this game of regulatory whack-a-mole that the concept of Privacy by Design was born. Rather than requiring compliance through covenants, why not build privacy directly into the design of the technology. This will force organizations to adopt a more privacy-first approach to client engagement, instead of looking to maximize the data they can use.

As much of an improvement as this is over the more traditional regulatory approach we are accustomed to, its success is still dependant on data businesses actually implementing these measures. Which, as we have seen, is fundamentally opposed to how their incentives are aligned.

This is where India’s techno-legal approach can offer a useful alternative. By incorporating regulatory principles directly into the code of infrastructure built in the public interest, it obliges all entities that use it to comply with those regulatory stipulations. Since the code is designed and managed by the government or operates under the supervision of a regulatory framework, it can be constantly re-oriented to address efforts made by participants to subvert its operational objectives.

But India’s digital public infrastructure (DPI) has additionally been built according to a set of design principles that give regulators new ways in which to achieve their regulatory objectives. It is worth discussing how.

Take, for example, the principle of interoperability. All of India’s digital public infrastructure has been built to be modular, extensible and interoperable. This allows the infrastructure to interact with the systems of private and public entities in a technical manner that ensures optimal reusability and integration.

But this interoperability also serves another purpose. Where regulatory principles can been embedded into a given modular digital building block, every other part of our digital public infrastructure that relies on that block to perform a given function will automatically follow those principles. As more and more such building blocks are built, all infrastructure assembled using these elements will implicitly have these principles embedded in their functioning.

Regulators can use this to their advantage, infectiously achieving regulatory objectives through the technical design of individual building blocks.

Another example of regulatory design is the federation implicit in the structure of most Indian DPI. By ensuring that data remains where it was collected instead of aggregated into a single common repository, Indian DPI takes advantage of the data security that is inherent in the federated design.

All data systems are vulnerable to breach and accumulating data in one place intensifies that. Keeping data at the edges where they currently reside and designing the system so that it is possible to easily access it when required considerably reduces that risk. This also has the added advantage of mitigating concerns around the use of data for surveillance. When data is pooled into a common repository, it makes easier for it to be used to derive inferences about all to whom that data pertains. Ensuring that the data remains federated makes it that much harder to do so. Having federation built into the design of the DPI in this manner mitigates these concerns.

Finally, most Indian DPI are described in terms of protocols—specifications that articulate how they should be built without actually getting into the details of platform design. It is then left to participants in those ecosystems to incorporate them into the technology systems that provide the services that the DPI was designed to offer.

This approach has parallels with what I have often written about—the notion of principle-based regulations as a way to address the challenges of governing fast-moving technologies. By implementing a protocols-based approach, Indian DPI has incorporated the concept of principles-based regulation into its design. As the conversation around digital public infrastructure gains traction, we should reflect on these additional aspects as well. It is only through an appreciation of how these elements work together that we will be able to design effective data governance solutions.

Rahul Matthanis a partner at Trilegal and also has a podcast by the name Ex Machina. His Twitter handle is @matthan

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