On May 30 and 31 I attended a meeting in Washington, the Rights and Bytes: Law and Big Data Workshop. The workshop explored progress in developing effective, legally sound, software-based solutions for the management of digital identities and for the protection and sharing of sensitive data. It was sponsored by ID³, a recently organized multidisciplinary non-profit institution with close ties to MIT’s Media Lab. ID³’s principal focus is to develop architectural frameworks and open source software solutions that embody the necessary policy principles for managing critical personal information so that it can be tested, verified, improved and scaled.
For the past few hundred years, governments around the world have developed laws, policies and practices to help us better get along with each other as we conduct the many transactions and interactions that are part of our everyday lives. But, as as Internet and digital technologies are increasingly integrated into just about all aspects of our lives, the laws, policies and institutions we developed for the physical world are way too impractical for our fast moving, fast changing digital world. We must somehow bring with us and adapt our policies and regulations from the physical to the digital world.
Is this even feasible? Yes, argues John Clippinger, ID³’s Executive Director and CEO, and policy strategist and writer David Bollier in an excellent working paper Digital Common Law: Brief on Trust Frameworks and Self-Governance which they wrote for the workshop.
“The ultimate goal is to develop a new network architecture for personal data that will enable new forms of trusted governance, commercial transactions, and social relationships. The envisioned system would seek to leverage the powers of Big Data while empowering users to control how their personal information can be used. By helping devise a more transparent, accountable governance system that is holistic in scope - and only minimally dependent upon legacy institutions of law and policymaking - we hope to nurture a new, network-native form of law that we call digital common law.”
Clippinger and Bollier define digital common law as “ . . .a bottom-up, voluntary, user-driven system that establishes context-specific norms for governing a given online community/market.” It harks back to the common law legal system that originated in England in the Middle Ages and is in use in most former British Empire colonies including the US. A key characteristic of common law systems is their ability to continuously evolve to meet changing societal needs. The ability to evolve and adapt makes it particularly suitable to a fast changing, highly complex society like ours.
Originally, common law was primarily oral in nature and got passed down through generations by word-of-mouth. As society grew, along with the number of precedents comprising common law, the law became more structured, and was written down and taught in schools and other institutions. This has served us well for the past few hundred years. But, to support the requirement of our increasingly digital society, we now must figure out how to start capturing major aspects of the law in software and algorithms.
“While broad parameters of law continue to be set by legislatures, executive branch agencies and courts, the point of this social-legal-technical ecosystem is to embed as many fundamental principles of decision-making, oversight, and enforcement as possible into the software design and network protocols themselves.”
We don’t really have a choice. As more and more of our critical assets are captured digitally, including medical records and financial transactions, the laws and principles governing their use must move to the digital realm as well. There is no way for our present system to keep up with the required volumes and response times.
This is particularly critical in areas like digital money and payments. Over time, an increasing number of our daily transactions will be handled through digital wallets in our mobile devices. Furthermore, given their near universal availability, these mobile devices will enable billions around the world to become part of our global, digital economy. This digital economic inclusiveness will give rise to an explosive volume of transactions of all sorts which must be handled at very low costs.
The only possible answer is to embody the appropriate laws and policy principles governing such transactions into software. They must be formalized and codified into computable algorithms whose performance can continuously improve by leveraging advances in technology, software and algorithms, as well as Big Data and machine learning. The digital common law software should be developed as an open collaborative project in which all community members can participate and contribute, and which is designed to advance the interest of all individuals and groups involved.
According to Clippinger and Bollier, the software platform should include the following capabilities:
- User-set terms for controlling their personal data, including portability;
- Ability to harness Big Data for positive economic and social ends through “personal data ecosystems”;
- Security and privacy embedded in the infrastructure design that should significantly reduce the need for costly and complicated external enforcement (government action, litigation, etc.);
- Open sharing and collaboration in an open, competitive marketplace rather than a winner-take-all approach where one dominant player sets the terms for competition and innovation;
- Autonomy for online communities to govern how their collaborated created value will be managed; and
- An infrastructure design which enables trustworthy relationships and permeable organizational boundaries to flourish.
I am frankly still struggling to wrap my head around the implications of a self- organizing system of digital common laws developed by open, collaborative communities. But, the last few decades have seen the development of a few such transformative initiatives with similarly unusual characteristics that we initially struggled to comprehend, including the Internet, World Wide Web and Linux. As Clippinger and Boillier observe:
“At first blush, this idea may sound unrealistic, radical, or ridiculous. But we believe that this vision is entirely feasible and, indeed, highly attractive, because it can begin to solve so many vexing social, economic and technological problems that existing institutions and policy structures cannot.”
I certainly hope so. The development and operations of such a digital common law platform promises to be one of our most exciting and transformational initiatives in the decades ahead.