“Take Amartya Sen’s flute example: there is a little kid who makes a flute and then there is another little kid who plays the flute and then there is a little kid who doesn’t have any other toy. Should this flute be given to the person who has made it, to the person who actually knows to play the flute, or to the person who doesn’t have any other toy?” This parable, introduced up at MediaNama’s two-day dialogue on the Governance of Non-Private Knowledge, is a helpful lens to take a look at the federal government requiring firms to promote non-personal knowledge. Does the federal government have a reputable public curiosity or sovereign declare over knowledge it didn’t work to assemble, and that it is probably not in one of the best place to make the most of?

The dialogue was held with assist from Centre for Communication Governance (NLU Delhi), Fb and FTI Consulting. Remarks are anonymised as a result of the dialogue was held beneath Chatham Home Guidelines. Quotes have been edited for size and readability.

  • Land acquisition and non-personal knowledge: One attendee drew a parallel between the federal government requiring — however considerably compensating — land they wanted for state tasks. “Just because land acquisition has existed as an eminent domain practice for hundreds of years, it’s not free from controversy.” The attendee identified that regardless that land acquisition has existed for a very long time, there have been circumstances the place whole communities have been displaced due to their sturdy cultural {and professional} ties with the land that was acquired from them, and that usually, compensation was not excellent. “Just because an example exists where the government is known to regulate a resource in the public interest does not mean that it can do so for any resource including data,” the attendee added.
    • Objective safeguard: Land acquisition legal guidelines restrict the aim to which acquired property might be put to make use of. Comparable protections are wanted for non-personal knowledge, one attendee stated: “One can argue that this is even worse than expropriation; you still don’t have these safeguards for change of purpose, usage of purpose, the limitation of purpose, safeguards are not there, so, therefore, that is still, I would argue is a regressive aspect, if at all you think there are rights akin to property rights in, when you have collected data with having expended your resources if you have, I mean if the regime thinks that there are rights akin to property rights, I think this change limitation of purpose the safeguard has to come in.”
  • What does knowledge possession imply? What does knowledge possession imply when such info is often offered to firms by customers, who can assert rights to that info? An attendee identified that the report doesn’t try and reply this meaningfully: “For intangible assets like knowledge and data, the term ‘Ownership’ is used by the report very loosely to mean a set of primary economic and other statutory rights. So they imply something known as a ‘Beneficial Ownership / Interest’, but there is absolutely no substantiation of what that interest looks like, or what are the rights are that will play out in regulating non-personal data.” One attendee identified, “We may have access, we may have a right of ownership over our personal data, but with NPD, we do not have access.”
  • Does not making use of non-personal knowledge result in welfare losses? When non-personal knowledge exists in personal fingers that might make it simpler to, let’s say, ship welfare advantages, does it make sense to require that knowledge be put to make use of? One attendee disagreed: “I am not being deprived of my data because somebody has collected non-personal data about me; if somebody else wants this non-personal data, nobody stops that person from collecting the data themselves. If it is really necessary for welfare purposes, they can always regulate and pass a law to that effect, but as a general lien on private data, that we might require this data for welfare, I think it is a very dangerous way to look at things. I don’t think there are welfare gaps caused by this and I would say that the Government has a very very difficult case to prove if that’s what they are trying to allege.”
  • Balancing personal and public rights: “If you have a right to public transport it does not necessarily mean that you get a Mercedes,” an attendee stated. “You can also use a Maruti; so if Google has so much more data than company X or company Y does, that’s because Google deserves that data. They have not collected it through any sovereign right over me, they have just gone with the old fashioned way of persuading me to give them this information,” they added.
  • Surveillance issues: Attendees have been involved concerning the privateness implications of requiring the sale of non-personal knowledge. One stated, “The report itself recognises, that data may get reconverted and de-anonymised, and if all that mischief can be done by the Government, where are the safeguards? We don’t have a surveillance law, we don’t even have the shape of the personal data protection bill yet, so if that is the case, once you have one other avenue for the Government to access this data, those harms become aggravated. Surveillance reform has to come first so that the Government has to set an example, the state must set an example as far as data practices are concerned, whether it is personal data or non-personal data.”
    •  Opacity of current knowledge programs: One different attendee identified how broad legal guidelines and practices have led to surveillance programs current that the general public has little details about. “With the exception of Aadhaar there is very little known about how these systems are working and how they are working against us and what is the use to the extent to which the Government is using relying on them,” the attendee stated. With few protections in place, “the government will be combining non-personal data with other data that they already have, and that combination has huge implications for several liberties and fundamental rights. What is likely to happen is that the centre of power is likely to shift from opaque corporations to an opaque state”
  • Nationwide safety exemptions: Attendees have been involved concerning the exemptions that regulation enforcement and nationwide safety could also be granted. “We are seeing it in the Personal Data Protection bill where clauses 35 and 36 give the government literally a complete exemption from all obligations under the bill.  So, I have absolutely no doubt in my mind that even the NPD regime, you know, will have similar exemptions, and what we were looking at is less accountability and less information about how this information is going to be used.”
  • Constitutional rights and NPD: One attendee was involved concerning the implications this might have for the constitutional proper in opposition to self-incrimination. “The fact is that, you know, if you have access to this information, you should not be sharing it without due cause or without due process, let there be a warrant, and let there be a reasons given why this information needs to be shared.  Otherwise, a free flow of data information between government departments is the end of all liberty.” Predictive policing and profiling was additionally a priority, with one attendee mentioning, “There is no statutory mechanism that will currently protect me from such profiling.”
  • Proving knowledge want: One attendee identified that having necessities that the federal government clarify its want for sure knowledge could possibly be necessary, as litigation often results in the federal government getting the advantage of the doubt. “So if the government tells the court on an affidavit that they really need this data, chances are that they are going to accept it out of deference to the government. So maybe this is the reason why the deference should be more limited. They should expect a higher degree of proof before accepting that what they want is in the public interest.”
  • Are knowledge trustees dependable? One answer proposed has been to nominate neighborhood trustees which are authorised to consent to non-personal knowledge requests on behalf of the populations the info relies on. An attendee identified that this might result in a battle of curiosity, particularly if the trustee is closely influenced by the federal government. “there is definitely a conflict of interest between a data trustee acting in the public interest and say, applying to a Non-Personal Data Authority, which might also be significantly under executive control.” An attendee added, “I do not think I have enough faith that under this model, that the trustee will adequately represent the interests of the community, and that the public interest for the trustees is actually the interests of the community that it claims to represent.”
    • Abuse of trusteeship: One other attendee argued, “The problem in the conception of a trusteeship or a fiduciary relationship is that the person entrusted actually has powers over the person who is entrustee.  I mean, for example, even without there are certain things that the trustee can do even without the consent of the truster, because that is I mean, the powers that a trustee exercises are fairly expensive.  So, whether the state will abuse this, if there is a bill, that regime will have to recognize that if this kind of trusteeship powers are given to the state, it will be abuse then there has to be safeguards.”
  • Consent points: On the difficulty of people refusing to consent to their knowledge being despatched to different entities even in an anonymised and aggregated type, one attendee identified this could possibly be near unimaginable. “Consent is unfortunately rendered meaningless because companies will just refuse to provide services, saying that this is my obligation under law and I have to pass this data on, so if you do not consent to me passing on your anonymised data onwards, I cannot provide you my service.”
  • Totally different requirements for various ministries: If you are a typical tech company, arguably the only government agency that will walk up to you and ask you for data would be something like the Ministry of Home Affairs or the police department. But I think that we are also now seeing an evolution where the group of agencies that can demand compulsory data sharing are expanding. Within the framework that this report envisages, I could see the Ministry of Commerce, the Ministry of Information Technology and the DPIIT as being different government agencies that come up to you and demand certain kinds of data and certain kinds of information. What are the rules of interaction here? What are the criteria for commercial interactions that will now start taking place? There would be a very different set of considerations that would govern what a Ministry of Commerce can ask from you and what a Ministry of Home Affairs can ask from you in any given scenario,” one attendee identified.
  • How non-personal is non-personal knowledge? One attendee argued that even aggregated knowledge may have unhealthy outcomes on the particular person and neighborhood degree. “[Delhi Police] have a mapping software and what they are doing right now is making a lot of layers. They don’t have a lot of data and they want to do a lot of survey in Delhi, especially of migrant colonies, especially where people know the slums and places. So, they will put in every data possible in those layers to recognize the so-called criminals. So I’m just wondering whether even if it’s non-personal data, so-called non-personal data, which is not identifiable, it can identify a lot of things. Maybe not people, but regions, which is where our predictive policing is right now, we are not policing people, we are policing regions. They can easily say that it’s non-personal data, is non identifiable. But when it’s pushed through this lens, then when we all know what is the output going to be.”
    • Air pollution knowledge: Even one thing as supposedly impersonal as air pollution knowledge, the attendee claimed, could possibly be turned in opposition to a populace. “When pollution data comes out, that data can also be used in putting those areas down in terms of property prices, or new schools will never come up in those areas or property prices will go down,” the attendee stated.