The distinction between negative and positive liberties is important in sociology and philosophy, especially when it comes to offering equal opportunities to citizens.
The EU will introduce its new Data Act soon. The US administration is also planning the next steps to improve privacy. Even China has introduced some legislation to protect privacy. In the UK, there have been discussions to modify privacy-related legislation from EU’s regulation (GDPR) to the post-Brexit time.
Quite often, data privacy regulations focus on restricting the use of personal data. On the other hand, data privacy regulations impose specific rules for companies setting forth restrictions on how to use data. But how much is done to empower people to get personal value from their data? Giving more agency to individuals would pave the way to make development more positive than only introducing restrictions and adding more complexity.
The EU will take the next step in September when the Data Act becomes effective – over four years after GDPR. The White House is currently exploring possible executive actions to advance Privacy Enhancing Technologies and unlock the value of data. I also participated in writing a response to their request for information. When I was reading these and some other data privacy regulations, I was wondering why they are so focused on restricting the use of data and also creating complexity for users (e.g. concerning cookie approvals) when the regulators could also focus more on offering opportunities for ordinary people to get value from their data.
These new data privacy legislative initiatives, of course, have many positive aspects. They impose limits on how companies can monetize the data of individuals, how they can collect and trade data, and permit users to access their own personal data and metadata. This is important.
If we take a simplified example from education, negative liberty means everyone must have access to education, e.g. there should be no restrictions based on gender, race or ethnic background. Yet, positive liberty means that all people can get an education, i.e. have enough education available, and financially make it possible for anyone to get an education. Positive liberty is the ability to fulfil one’s purposes.
We can apply this rationale to personal data, too. Most data privacy laws and regulations focus on negative liberties, i.e. freedom from external restraint on individuals in accessing and controlling personal data. However, those regulations (still) fail to offer instruments and resources for individuals to own and get value from personal data. And as with many other things in society, it is not so that governments alone can offer this ability; still, they should create and foster an environment where individuals can have access to these abilities and resources.
This might sound theoretical. So let’s take a practical example from wearable data. Current data privacy regulations (such as GDPR or CCPA) set forth specific rules and restrictions on how wearable device companies can utilize, sell and share your wellness and health data collected from your device. These data privacy regulations also give you certain rights to get a copy of your data.
If we think about the future, the next step in the data ecosystem should focus on value. Individual consumers like you and I must be able to utilize our data better and get value from it. In practical terms, you should be able to get your data easily in a clearly defined format. You should then be able to combine it with data from data sources (e.g. from other wearable devices and your health records). You should be able to get applications from anyone (not only from the single wearable manufacturer whose device you’re using) that help you to analyze and utilize your data and build all kinds of health and wellness services. Then you have positive liberty with your wearable data.
Nowadays, there are also many negative associations with data privacy regulations, mainly because there are so many restrictions and things that make things more complex for ordinary people and businesses. Many consumers, for example, criticize the EU when they need to accept cookies all the time, and they don’t feel it creates value for anyone. UK Prime Ministerial candidate, Rishi Sunak, commented on GDPR, how it offers too many restrictions, and how he would like to introduce a new set of data privacy regulations more suitable for post-Brexit UK. Most probably, his main concern was offering more freedom to companies, not consumers (yes, it is easy to criticize red tape regulations such as GDPR).
The fact is that people can get a lot of benefits from their data. Personal health data ownership and applications can also make the healthcare market work better. And it is not only about making the data market fairer; it is also about empowering people to make better choices concerning different healthcare and wellness services, especially those service providers who don’t keep their customer data.
We already have the first applications on user-held data, such as preventative treatment for Type 2 diabetes and managing the circadian rhythm in shift work. There is even a personal avatar to help plan diet and exercise or projects for AI doctors to notice early anomalies from health data and advise treatment.
The same applies in many other areas. Finance data, home data and purchase data are examples that can help people in their daily lives and also help them to save money. Enterprises have already used data and analytics for decades to make their operations more effective, increase sales and save costs. But consumers are still in the infancy phase to be able to utilize their data.
Data privacy regulations also play an important role in guaranteeing privacy and restricting misuse of personal data. But the legislative framework is just the first step. Regulators, lawmakers and companies should now take the next step to offer positive liberties with personal data and empower individuals to get value and improve their lives with their data. It will also change the whole privacy discussion for the better when it is not just a discussion about red tapes but focuses more on liberties and empowering people with their data. This development has already started. Hopefully, all parties will soon see the vast opportunities of how people with their data and tools can make life, societies, and businesses better.