Data science and the need for collective law and ethics

Efforts to regulate businesses doing large-scale data processing typically have their basis in liberalism. Privacy and data protection, property rights in data, and consumer protection models work to protect or scaffold the autonomous decision-making capacities of the individual. We argue that these forms of regulation, and the ethics behind them, are largely incompatible with the techno-political and techno-economic dimensions of data science.

Over the course of the 20th century, computer science, cognitive psychology, operations research, statistics and other fields, have converged on an understanding of utility-maximizing agency that, combined with a neoliberal legal configuration, guarantees the supremacy of private corporations over individuals that would know and defend their own individual interests. In particular, platforms, as data-processing businesses within the digital economy, have inverted the relationship between individuals and the market, making the former public and the latter private.

These regulatory paradigms also support the introduction of regulatory intermediaries, and there is now growing interest in theorizing and engineering data governance intermediaries to remedy this ethical and regulatory crisis. Data trusts, for instance, have been proposed to improve the bargaining power of consumers and mollify the most pernicious elements of direct contracting between data science businesses and individuals.

Beyond state imposed or commercially operated models, we explore several alternative forms of community-oriented intermediaries and agents that we suggest, on one hand, better respond to the specificities of data science as an economic paradigm, and on the other, take account of the relational nature of data – treating data neither as a commodity to be brokered, nor as a reflection of personality, but as a medium of self-governance that is legally and technically co-constructed through interactions with information systems.

Dr Jake Goldenfein – Melbourne Law School

Jake Goldenfein is a law and technology scholar at Melbourne Law School and an Associate Investigator in the ARC Centre of Excellence for Automated Decision-Making and Society. Prior to his appointment at MLS, he completed a postdoctoral fellowship at Cornell Tech, Cornell University, and was a lecturer at Swinburne Law School. Jake studies the regulation of surveillance; law in cyber-physical systems; the relationship between data science and legal theory; and platform governance.

Dr Sebastian Benthall – Research Fellow,  Information Law Institute, NYU

Sebastian Benthall is a Research Fellow at the Information Law Institute, NYU School of Law and a Research Engineer at Econ-Ark. He has a PhD from UC Berkeley’s School of Information.

His research applies computational methods to questions about the political economy of information.

Associate Professor Tatiana Cutts – Melbourne Law School

Tatiana joined MLS from the London School of Economics in 2020. Her research spans law and technology, private law and legal theory. She has conducted extensive public-facing work on blockchain technology and cryptoassets, and is currently writing a book (“Artificial Justice”) on the relationship between algorithmic and human decision-making in matters of justice.

Tatiana is an Academic Fellow of the Honourable Society of the Inner Temple, and received her D.Phil, BCL and LLB from the University of Oxford.

Dr Sarah Logan – Research Fellow/Lecturer in the Department of International Relations

Sarah is a Research Fellow/Lecturer in the Department of International Relations. Her primary research focus is the impact of technology, especially the internet, on International Relations. She is interested in how technology interacts with traditional understandings of statehood, power and agency. Sarah’s previous research project concerned the history of counter extremism policy in the US and the UK.

Prior to joining the Department in 2019, Sarah was a postdoctoral research fellow in the Faculty of Law at the University of New South Wales. She was awarded a PhD in International Relations from the Australian National University in 2014. Prior to joining academia, Sarah worked in government.