Legal challenges of big data
Authors
Prof. Sabine Gless and Prof. Herbert Zech
Universität Basel and Humboldt-Universität zu Berlin
For their NRP 75 project “The legal challenges posed by Big Data”, Prof. Sabine Gless and Prof. Herbert Zech together with their project team members dealt with questions of exploitation and protection.
Current legislation is not designed for Big Data. Taking the example of “connected traffic”, one requirement for driving automation, the project examined different legal questions regarding the exploitation and the protection of Big Data. Three messages to take away from the project:
1) Think outside the box: Create innovative legal concepts for the digital turn, for instance, establish a solid regulatory framework based on the concept of “data trustees”, empowering the individual with non-exclusive portability data rights in private law and data privileges in criminal law.
2) Tighten existing ideas for the digital turn: For instance, in law combine the traditional notion of privacy protection with institutions in private and criminal law for a functional legal framework when trading in data and for a bulwark against intrusions on private sphere when fact-finding in criminal cases.
3) Team-up with other disciplines: In particular, cultivate an interdisciplinary terminology and standard setting to enhance fruitful exchanges; this is of special importance for an assessment of Big Data in legal theory and practice, as – up to now – the law lacks adequate language to exactly name pressing conflicts of interest in the digital turn.
Recommendations
The project identified the need for legal reforms and formulated, in particular, the following recommendations.
- In private law, a regulatory framework must be put in place that avoids the pitfalls of a “data property law”, namely, restricting competition and innovation. Instead establish a legal framework that allocates adequate rights to the individual as well as to “data trustees”. With respect to non-personal data, the existing legal framework should also be further developed, in particular, a non-exclusive portability right ought to be introduced and open access must be designed accordingly.
- In criminal law, the legal framework must address various new demands, among them the allocation of the right to press charges after a data crime and the use of Big Data (or rather AI) in criminal procedures adequately. For instance, prosecution needs a clear-cut rule, who can initiate criminal proceedings after personal data is hacked. The lawmaker ought to allocate the victims’ rights (to press charges or, in certain situations, block charges) corresponding to the concept applied in private law. The underlying rationale for a harmonized approach is that data rights need an overall protection.
- In criminal procedural law, regardless of whether Big Data (or in the future AI) becomes a tool to convict or acquit, the law must ensure trustworthiness and fairness in the fact-finding process. Therefore, two issues must be addressed if the law is to keep up with the rapid pace of advancing technology: Establish tools to (a) meaningfully vet “AI in the courtroom” and (b) to ban big data applications potentially violating human dignity.
A parallel cross-cutting project had a special focus on the right to access data for the common good, in particular, for publicly funded research, which connected this research to our cross-cutting project, «Open Data and Legal Strings – Mapping the Ground for Public Funding Research Projects».
PhD Projects
Big Data and Property Rights – How to Share the Benefits? (Alain Schmid)
Alain Schmid, Rechte an Daten am Beispiel von durch den Betrieb eines Fahrzeuges generierten Daten (publication forthcoming)
Big Data and Consumer Protection – Beyond Conventional Privacy Concepts (Kirsten Schmidt)
Kirsten Schmidt, Datenschutzrecht als Vermögensrecht. Datenschutzrecht als Instrument des Datenhandels. Springer 2020, Open access, www.springer.com/de/book/9783658307967
Big Data Crimes – Guardianship for Data in Criminal Justice (Dario Stagno)
Big Data and Criminal Investigations – Right to Privacy and Other Privileges? (Christine Möhrke Sobolewski)
Christine Möhrke-Sobolewski, Gehackte Fahrzeuge – Strafantragsrecht bei Datendelikten in der Schweiz und in Deutschland, Diss. 2019, Universität Basel (forthcoming open access at DIKE)
Web Observations. Analysing Big Data Based on Automated Data Extractions (Alexander Gröflin).
Alexander Gröflin, Alexander, Web Observations: Analysing Web Data Through Automated Data Extraction. 2018, https://edoc.unibas.ch/75352/