[22nd November, 2020]
The Political Economy of Data
Data and data governance are hotly contested issues in the 21st century. Typically, they have been perceived as questions of policy and political economy. Data is attributed multiple characterizations, one of which is that of a resource. There are many ways of looking at data as a resource, such as by employing a political economy lens. This is based on the idea that “the world economy is transitioning from a phase of container shipping to one of packet switching, where the largest and most important cross-border flows are data, not physical goods”. Alternatively, data can be viewed as a ‘factor of production’ and a ‘new economic resource’. What these ideas bring to the fore is the lack of a corresponding discourse around economic rights which results in an uncritical acceptance of ‘free’ data collection, thereby making appropriation and hoarding as the most remunerative business model for most large digital companies. To understand these premises further and to also analyze the solutions to change the state of affairs, this post attempts to look at the emerging data protection debates through a constitutional lens.
To revisit the status quo, states are mulling over various strategies and developing policy documents to regulate and tap into this resource of data. Two recent examples of emerging ideas in policy discussions are ‘data sharing’ and ‘community ownership of data’. These concepts are being considered in jurisdictions such as the European Union and India, which are exploring various levels of access to private data for public and common use. Such regulatory arrangements may beget constitutional questions because of a shift in the understanding of ‘data’, from a private resource to a public or common one. Against this background, it may be opportune to revisit the economic rights jurisprudence enshrined in the Constitution of India (“Constitution”) to examine questions of redistributive justice in relation to data. The importance of engaging with constitutional questions cannot be stated enough. While the constitutionality and legislative power may be assessed by the judiciary, the constituent power can also be invoked to bring in sweeping changes. For example, the Constitution of Chile is attempting to bring under its remit neuro data through a constitutional amendment. Notwithstanding the distinct constitutional possibilities, one interpretation is provided here.
The Constitutional Scheme of Redistribution
I trace the scheme of Article 39(b) read with Article 31C of the Constitution to explore the characterization of data as a resource that can be redistributed by data sharing and community ownership of data, through various laws and policies. While Article 39(b) is placed in Part IV [Directive Principles of State Policy, which are non-justiciable], Article 31C arises in Part III [Fundamental Rights, which are justiciable] of the Constitution. It is on the basis of their interrelationship that the argument is stringed together.
The Constitutional Origin of Article 39(b) and Article 31C
During the drafting of the Constitution, there were widespread discussions related to the provision of a charter for an ‘economic democracy’ in the Constitution. This was in accordance with the Objectives Resolution which sought to assure political, social, and economic justice to the people of India. However, it was also clarified, time and again by the drafters, that the content of economic democracy can only be laid down by the Parliament. At the same time, the Constituent Assembly was aware of the class divisions that had debilitated the country, and the stringent measures that were needed to deal with the same, including constitutional ones. Throughout the framing of the Constitution, up until its final revision, some members argued that fundamental rights are the basis for economic justice.
To that end, Dr. B.R. Ambedkar laid down the object in framing this Constitution as two fold: “(i) to lay down the form of political democracy; and (ii) to lay down that our ideal is economic democracy and also to prescribe that every Government whatever, it is in power, shall strive to bring about economic democracy.” When challenged if the Constitution furthered the aspirations of a true democracy in India, Dr. B.R. Ambedkar emphatically made reference to Article 39 as an example of the socialist principles governing the State in its aims to make policies and laws. There were various amendments which were suggested regarding its scope and mandate, in the hope of realizing the ideal of economic justice.
The most emphatic of these amendments was forwarded by Mr. K.T. Shah. He proposed a change to spell out the content of the Article by laying down the type of resources to be protected and the method of care. He expressed that the Article should provide for community ownership of natural resources such as mines, mineral wealth, forests, rivers and flowing water, seas, which is to be enforced through the State or state corporations. Effectively, this proposal sought to narrow the scope of term of ‘natural resources’.
In response, Dr. B.R. Ambedkar indicated his reservation, as the original draft encompassed broader language which included the full intent of the suggested amendment. Finally, the proposal was not accepted and Article 39(b) was retained as seen in its current form. It provides:
“The State shall, in particular, direct its policy towards securing—
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;”
Modern jurisprudential developments in India have not shied away from affirming the legislative categorization of wealth (through taxes), land, buses, motor vehicles and contract carriages, coke oven plants and coal mines, electrical energy and spectrum as ‘material resources’. Further, the redistribution of a resource from private ownership to a community has also been affirmed, and the idea of ‘distribution’ has been held to be broad enough to capture different ownership structures, not just State ownership. However, the respective laws for such redistribution were a site of contestation due to their apparent conflict with many fundamental rights, such as the freedom to carry out trade and the right to equality. Amidst the political whirlwind of the 1970s, Article 31C was added to the Constitution by the Constitution (Twenty Fifth Amendment) Act, 1972. It sought to shield the laws framed to promote redistribution, from such challenges. The relevant part provides:
“Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31;”
It was regarded as a means to enforce Article 39(b) and (c) in the form of limitation on fundamental rights such as Article 19(1)(g) [freedom to practice profession, carry out any occupation, trade or business], within the limits of Article 19(6) [reasonable restriction]. However, further developments clarified that it neither precluded judicial review nor provided an unfettered exemption. Instead, whenever challenged, a judicial enquiry would ensue to understand “a real and substantial connection between the relevant enacted law and Article 39(b) or (c). To determine whether a law satisfies this test, the court would have to examine the pith and substance, the true nature and character of the law as also its design and the subject matter dealt with by it, together with its object and scope. The dominant object of the law must be to give effect to the Directive Principle, to accord protection to the law under the [amended] Article 31C.”
It is interesting to note how the constitutional term ‘material resources’ has been interpreted, across several historical phases, to indicate its flexible and broad scope. This ranged from before the addition of Article 31C, to after and the recent years. It must also be noted that the above scheme is subject to judicial reconsideration before a nine judge bench of the Supreme Court in the case of Property Owners’ Association v. State of Maharashtra. It will discuss important aspects of the doctrine of revival as well as the contours of Article 39(b). The conclusion will further inform this discussion and provide new insights to build upon.
Data Sharing Frameworks
It must now be seen if this jurisprudence can be juxtaposed with the governance and ownership structure for data. The Draft Report on Non-Personal Data Governance Framework, 2020 in India has suggested that data sharing may occur amongst data businesses, in a peer to peer manner or as facilitated by a regulator. It classifies data per its source or subject as public, private or community, whereby community data would be held in data trusts, to be used or processed as per what the community wills, as expressed through a data trustee. It is an evolving framework devised solely for non-personal data. In Europe, the Final Report for a ‘European Strategy on Business-to-Government Data Sharing for the Public Interest’ considers data as a ‘non-rivalrous, non-excludable’, ‘infrastructure resource’ and a ‘critical public infrastructure for the future’. It suggested creation of an EU-wide data governance structure for data sharing, complete with data stewardship mechanisms.
In view of these major developments in the domain of data governance, it is envisaged that the constitutional elements discussed earlier, with regard to India, can provide the necessary basis to make Big Data work for all and empower people themselves to decide the future course of digital development that impacts them. However, it must be remembered that such a distributive strategy for data can take an effective shape only through a deliberative and decentralized structure imagined at the community level. It should not be employed for centralizing data power in the government’s hands.
There also exist several other Constitutions with a normative focus on economic or resource redistribution, that express language which may support such contemporaneous interpretation in relation to the resource of data. These are the Constitutions of Sri Lanka (Article 27(2)(e)), Nigeria (Article 16(2)(b)), Nepal (Article 50(3)), Mozambique (Article 96(1)), Ireland (Article 45(2)(ii)), El Salvador (Article 101), Ecuador (Article 3(5), Article 57(12)), Bolivia (Article 316(7)), Cape Verde (Article 88(1)) and Cuba (Article 19).
As data governance frameworks to regulate various kinds of data are put in place, especially towards mandated data sharing, there will be inevitable push back from various quarters. In such a scenario, it is necessary to explore the strength of the corresponding data governance frameworks, not only from the lens of policy objectives but also in terms of their constitutionally tenability. This will also help build a fundamental and broader consensus on equitable use of the social resource of data. Such explorations and discussions can provide a source for future case laws and a dialectical foundation for ways to understand data. Most importantly, if a law to govern non-personal data is framed with the key principles of common good at its heart and a clear nexus with the common and public interest that it seeks to serve, such a law can be effectively shielded from possible legal or constitutional challenges in the future.
A comprehensive version of the ideas developed in the blog can be found here – https://datagovernance.org/