Before reading the paper highlighted today I didn’t know what a ‘wicked problem’ was (more here if you care, Wicked Problems). Apparently planners, policy-makers and legal experts come across them all the time, hence the need for a term to describe them.
A wicked problem doesn’t involve witches, of the West or elsewhere, it’s one that’s insoluble. These are problems which defy easy description and just aren’t capable of resolution. All that’s possible is intervention that can never make them go away but only lead to ‘better or worse’ outcomes.
Data governance is a good example. Consider; as a British subject with dual Irish nationality when I use a credit card issued by a U.S. company in China to buy a Japanese consumer product who now has a ‘right’ to view/use that data? China, Visa, Sony, the Japanese government, the U.S government, the card-issuing bank, the U.K., Ireland a European authority, oh and how about me? There’s no simple or ‘right’ answer.
In a piece for publication in the Berkley Technology Law Journal from researchers at the University of Hong Kong’s Faculty of Law Douglas W. Arner (et al.) puts the issue over a slow flame and suggests some ways that discussion on data regulation and legality can move forward.
In addition to the problem being wicked the researchers note three global responses to date which are products of the legal, cultural and economic framework within which they’ve been framed.
First, there’s the U.S. A laissez-faire approach based on the notion that property rights are inalienable. There markets that foster disruption and thrive on competition are the prevailing norm.
Next, there’s Europe. There rights-based systems harmonized across 27-members, where personal privacy is fundamental, inform the response; a model the researchers describe as ‘coordinated market capitalism’.
Finally there’s China. Cyber-sovereignty has been a day-1 principle leading to the exclusion of free competition and a market in which government and business are fused, described as ‘controlled capitalism’.
If the problem is insoluble and the three major global power blocs’ approaches to are to remain so different what’s a workable way forward?
Three paths, most likely pursued concurrently, based on similar problems that governments have had to deal with, like water rights, could all provide utility.
The bilateral approach. When governments discuss water rights they also acknowledge the riparian system of river banks, tributaries, water catchment areas and etc. that must also form part of these discussions. A similar approach could work for specific data issues.
The plurilateral approach. This could work for information relating to certain professions, industries or other areas of specialist interest. Who doesn’t believe that open access to, say, cancer treatment data and drug development is anything but a global good?
The multilateral approach. It’s time for a new Bretton Woods (here’s a refresher on the old one Bretton Woods I ). The biggest players, perhaps the G20, need to thrash out some ‘hard laws’ for the digital age. At the same time a Digital Stability Board along the lines of the 2009 created Financial Stability Board could provide guide-rails for ongoing discussion and development among members.
What all these suggestions have in common is they would operate within the existing framework of international laws and norms that governments are already familiar with and therefore none represent too radical a departure from systems already in place.
What’s clear is something needs to be done before the open internet, which has provided so much benefit to humanity, begins to Balkanize.
So far that’s not happening but without more discussion about how to effectively control data on an international level it’s a worrying possibility.
Use this link to the paper in full Towards a Digital Bretton Woods?
Happy Sunday.