Data portability

According to DataPortability Project, data portability is the ability for people to reuse their data across interoperable applications.

Data portability is a concept to protect users from having their data stored in "silos" or "walled gardens" that are incompatible with one another, i.e. closed platforms, thus subjecting them to lock-in. Data portability requires common technical standards to facilitate the transfer from one data controller to another, thus promoting interoperability.

In a mixed economy there are capitalist incentives that motivate businesses to guard their respective assets. Governments allow businesses to protect such assets via limited-term Intellectual Property Rights. Even so, it often remains an ongoing task for public agencies to help overcome the urge of businesses, in this case acting as data controllers, to guard their pools of data on their customers, known as personal data or personally identifiable information too zealously. In the interest of promoting exchanges of data that would be beneficial to general welfare, in many cases considered consumer protection, the following related activities have been introduced by public-minded actors in the European Union and Switzerland.

European Union

The right to data portability was laid down in the European Union's General Data Protection Regulation GDPR passed in April 2016. The Regulation will apply to data processors in countries outside the EU as well under certain circumstances. "Controllers must make the data available in a structured, commonly used, machine-readable and interoperable format that allows the individual to transfer the data to another controller." ^[1][2] Earlier the European Data Protection Supervisor had stated that data portability could "let individuals benefit from the value created by the use of their personal data".^[3] The French national data supervisor CNIL is hosting a discussion. Current participants offer opinions on how the legislation provides few benefits for companies, but many for users.^[4]

Switzerland

Likewise, in Switzerland, a nation-state that is related to the EU only on a bilateral basis and as an EFTA Member State,^[5] there is a trend moving in the same direction. A cooperative is proposing to have a right to data portability anchored in the constitution of the Swiss Confederation, and the proposal is being seriously considered in the parliament.^[6] The cooperative is called MIDATA.coop; besides proposing legislation, it will offer users a place to store their data.^[7]

Requirements for effective data interoperability

It is always tricky for legislators to regulate at the right level of precision, as everyone understands technology will evolve faster than the law. So far, only the European Union has formalized the expectations around data portability, requiring the data "in a structured, commonly used, machine-readable and interoperable format". This touches on at least two distinct technical requirements for effective interoperability:

• the need to use file standards that allow for easy reuse (for instance CSV or JSON instead of PDF or even printed paper), encompassed by "structured, commonly used, machine-readable"
• the need (hinging on "interoperable") to not only consider an individual's data release on its own, but also in conjunction with other systems and other individuals' data releases from the same company. This hints at requirements regarding data schemas, versioning and specification of those schemas in case of frequent changes, and generally the absence of efforts on the part of the source data controller to complicate the effective interoperability downstream.

Rights of data subjects under the European Union's new GDPR

The list of these rights has grown; they are conveniently summarized in a handbook from a legal firm. ^[8] Here there is room only for a few rights related to data portability such as those of access and to explanation.

Comparison to the right of access in the EU GDPR

The data portability right is slightly different from the right of access; see the seventh item in the list cited in Footnote No.8. The right of access only mandates that the data subject gets to see their personal data. The old EU Data Protection Directive used to require explicitly in such cases for the data to be provided in "intelligible" form, which has been interpreted so far as "human readable". This requirement is still somewhat present in the EU's General Data Protection Regulation, but only implicitly in conjunction with the Recitals. Since the right to portability is mostly concerned with reuse by other services (i.e. most likely automated), it could be that both "human readable" and "raw format" would be inappropriate for effective data portability. Some intermediate level might need to be sought.

In addition, the GDPR limits the scope of data portability to cases were the processing is made on the basis of either consent of the data subject, or the performance of a contract.

Comparison to the right of explanation

The data portability right is related to the "right to explanation", i.e. when automated decisions are made that have legal effect or significant impact on individual data subjects. How to display an algorithm? One way is through a decision tree. The right to explanation is related to the "Right to not be evaluated on the basis of automated processing" shown as the last item in the list shown in Gabel / Hickman.^[9] This includes decisions based on profiling. Such a right was included in the EU Data Protection Directive of 1995, but not much enforcement followed. An article in Wired emphasised the poignancy of the discussion. ^[10] The issue has been discussed by Bygrave,^[11] and by Hildebrandt,^[12] who claims this to be one of the most important transparency rights in the era of machine learning and big data. In the United States there was a description of related developments in a seminal book by law professor Frank Pasquale; ^[13] the relevant passages were reviewed by the Electronic Privacy Information Center EPIC . ^[14]

Several papers have been published on these topics in 2016, the first of which, by Goodman / Flaxman, outlines the development of the right to explanation. ^[15] Pasquale does not think the approach goes far enough, as he has stated in a blog entry. ^[16]

Another 2016 paper, this one published by Katarinou et al. , includes remarks on a right of appeal such that "individuals would have a right to appeal to a machine against a decision made by a human." ^[17]

A third 2016 paper, Mittelstadt et al., maps the literature and relates it to the GDPR on pages 13-14.^[18]

On both sides of the Atlantic there has been recent activity pertaining to this ongoing debate. On November 7th 2016 an event was held in Brussels, organized by MEP Marietje Schaake in the European Parliament and described by Dana Boyd. ^[19] Only 11 days later at New York University there was a conference on "Fairness, Accountability, and Transparency in Machine Learning " where Principles for Accountable Algorithms and a Social Impact Statement for Algorithms were articulated and placed online for discussion.^[20]

References