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Data trusts

Chapter one from Exploring legal mechanisms for data stewardship – a joint publication with the AI Council

4 March 2021

Reading time: 35 minutes

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Diagram illustrating how data trusts work
How data trusts work

Background

Equity as a tool for establishing rights and remedies

Trust law has ancient roots, with the fiduciary responsibilities that sit at its core being traceable to practices established in Roman law. In the UK, the idea of a ‘trust’ as an entity has its origins in medieval England: with many landowners leaving England to fight in the Crusades, systems were needed to manage their estates in their absence.

Arrangements emerged through which Crusaders would transfer ownership of their estate to another individual, who would be responsible for managing their land and fulfilling any feudal responsibilities until their return. However, returning Crusaders often found themselves in disputes with their ‘caretaker’ landowners about land ownership. These disputes were referred to the Courts of Chancery to decide on an appropriate – equitable – remedy. These courts consistently recognised the claims of the returning Crusaders, creating the concepts of a ‘beneficiary’, ‘trustee’ and ‘trust’ to define a relationship in which one party would manage certain assets for the benefit of another – the establishment of a trust.

While the practices associated with trust law have changed over time, their core components have remained consistent: a trust is a legal relationship between at least two parties, in which one party (the trustee) manages the rights associated with an asset for the benefit of another (the beneficiary).1 Almost any right can be held in trust, so long as the trust meets three conditions:

  1. there is a clear intention to establish a trust
  2. the subject matter or property of the trust is defined
  3. the beneficiaries of the trust are specified (including as a conceptual
    category rather than nominally).

In the centuries that followed their emergence, the Courts of Chancery have played an important role in settling claims over rights and creating remedies where these rights have been infringed. Core to the operation of these courts is the concept of equity – that disputes should be settled in a way that is fair and just. In centring this concept in their jurisprudence, they have found or clarified new rights or responsibilities that might not be directly codified in Common Law, but which can be adjudicated according to legal principles of fairness. This has enabled the courts to develop flexible and innovative responses in situations where there may be gaps in Common Law, or where the strict definitions of the Common Law are ill-equipped to manage new social practices.

It is this ability to flex and adapt over time that has ensured the longevity of trusts and trust law as a governance tool, and it is these characteristics that have attracted interest in current debates about data governance.

This is chapter one from a joint publication from the Ada Lovelace Institute and the AI Council.

Why data trusts?

Today’s data environment is characterised by structural power imbalances. Those with access to large pools of data – often data about individuals – can leverage the value of aggregated data to create products and services that are foundational to many daily activities.

While offering many benefits, these patterns of data use can create new forms of vulnerability for individuals or groups. Recent years have brought examples of how new uses of data can, for example, create sensitive data about individuals by combining datasets that individually seemed innocuous, or use data to target individuals online in ways that might lead to discrimination or social division.

Today, these rights are typically managed through service agreements or other consent-based models of interaction between individuals and organisations. However, as patterns of data collection and use evolve, the weaknesses associated with these processes are becoming clearer. This has prompted re-examination of consent as a foundation for data exchange and the long-term risks associated with complex patterns of data use.

The limitations of consent as a model for data governance have already been well-characterised. Many terms and conditions are lengthy and difficult to understand, and individuals might not have the ability, knowledge or time to adequately review data access agreements; for many, interest in consent and control is sparked only after they have become aware of data misuse; and the processes for an individual to enact their data rights – or receive redress for data misuse – can be lengthy and inaccessible.2

Moreover, as interactions in the workplace, at home or with public services are increasingly shaped by digital technologies, there is pressure on individuals to ‘opt in’ to data exchanges, if they are to be able to participate in society. This reliance on digital interactions exacerbates power imbalances in the governance system.

Approaches to data governance that concentrate on single instances of data exchange also struggle to account for the pervasiveness of data use, much of this data being created as a result of a digital environment in which individuals ‘leak’ data during their daily activities. In many cases, vulnerabilities arising from data use come not from a single act of data processing, but from an accumulation of data uses that may have been innocuous individually, but that together form systems that shape the choices individuals make in their daily lives – from the news they read to the jobs adverts they see. Even if each single data exchange is underpinned by a consent-based interaction, this cumulative effect – and the long-term risks it can create – is something that existing policy frameworks are not well-placed to manage.3

Nevertheless, it needs to be pointed out that the foundational elements of the GDPR that govern data processing are principles such as data protection by design and by default, and mechanisms such as data protection impact assessments (DPIAs), which are designed to help preempt potential risks as early as possible. These are legal obligations and a prerequisite step before individuals are asked for consent.4 Therefore, it is important to highlight the broader compliance failures as well as the limitations of the consent mechanism which play a significant role in creating imbalances of power and potential harm.

The imbalances of power or ability of individuals and groups to act in ways that define their own future create a data environment that is in some ways akin to the feudal system which fostered the development of trust law. Powerful actors are able to make decisions that affect individuals, and – even if those actors are expected to act with a duty of care for individual rights and interests – individuals have limited ability to challenge these structures.

There are also limited mechanisms allowing individuals who want to share data for public benefit to do so via a structure that warrants trust. In areas where significant public benefit is at stake, individuals and communities may wish to take a view on how data is used, or press for action to use data to tackle major societal challenges. At present, the vehicles for the public to have such a voice are limited.

For the purposes of this report, trust law is explored as a new form of governance that can achieve goals such as:

  • increase an individual’s ability to exercise the rights they currently have in law
  • redistribute power in the digital environment in ways that support individuals and groups to proactively define terms of data use
  • support data use in ways that reflect shifting understandings of social value and changing technological capabilities.

The opportunities for commercial or not-for-profit organisations focused on product or research development, or which are seriously concerned about implementing a high degree of ethical obligations when it comes to data pertaining to their customers (and empower these customers not only to make active choices about data management, but also benefit from insights from this data) are briefly discussed in the section on ‘Opportunities for organisations to engage with data trusts’.

What is a data trust?

A data trust is a proposed mechanism for individuals to take the data rights that are set out in law (or the beneficial interest in those rights) and pool these into an organisation – a trust – in which trustees would exercise the data rights conferred by the law on behalf of the trust’s
beneficiaries.

Public debates about data use often centre around key questions such as who has access to data about us and how is it used. Data trusts would provide a vehicle for individuals and groups to more effectively influence the answers to these questions, by creating a vehicle for individuals to state their aspirations for data use and mandate a trustee to pursue these aspirations. By connecting the aspiration to share data to structures that protect individual rights, data trusts could provide alternative forms of ‘weak’ democracy, or new mechanisms for holding those in power to account.

The purposes for which data should be used, or data rights exercised, would be specified in the trust’s founding documents, and these purposes would be the foundation for any decision about how the trust would manage its assets. Mechanisms for deliberation or consultation with beneficiaries could also be built into a trust’s founding charter, with the form and function of those mechanisms depending on the objectives and intentions of the parties creating the trust.

Trustees and their fiduciary duties

Trustees play a crucial role in the success of such a trust. Data trustees will be tasked with stewarding the assets managed in a trust on behalf of its beneficiaries. In a ‘bottom-up’ data trust,5 the beneficiaries will be the data subjects (whose interests may include research facilitation, etc.). Data trustees will have a fiduciary responsibility to exercise (or leverage the beneficial interest inherent in) their data rights. Data trustees may seek to further the interests of the data subjects by entering into data-sharing agreements on their behalf, monitoring compliance with those agreements or negotiating better terms with service providers.

By leveraging the negotiating power inherent in pooled data rights, the data trustee would become a more powerful voice in contract negotiations, and be better placed to achieve favourable terms of data use than any single individual. In so doing, the role of the data trustee would be to empower the beneficiaries, widening their choices about data use beyond the ‘accept or walk away’ dichotomy presented by current governance structures. This role would require a high level of skill and knowledge, and support for a cohort of data trustees would
be needed to ensure they can fulfil their responsibilities.

Core to the rationale for using trust law as a vehicle for data governance is the fiduciary duty it creates. Trustees are required to act with undivided loyalty and dedication to the interests and aspirations of the beneficiaries.6 The strong safeguards this provides can create a foundation for data governance that gives data subjects confidence that their data rights are being managed with care.

Adding to these fiduciary duties, the law of equity provides a framework for accountability. If not adhering to the constitutional terms of a trust, trustees can be held to account for their actions by the trust’s beneficiaries (or the overseeing Court acting on their behalf) or an
independent regulator. Not only is a Court’s equitable jurisdiction to supervise, and intervene if necessary, not easily replicable within a contractual or corporate framework, the importance of the fact that equity relies on ex-post moral standards and emphasises good faith cannot be overestimated.

The flexibility offered by trusts also offers benefits in creating a governance system that is able to adapt to shifting patterns of data use. A range of subject matters or application areas could form the basis of a trust, allowing trusts to be established according to need: trusts would therefore allow co-evolution of patterns of data use and regulation.

In conditions of change or uncertainty around data use, this flexibility offers the ability to act now to promote some types of data use, while creating space to change practices in the future.
A further advantage of trust law is its ability to enable collective action while providing institutional safeguards that are commensurate to the vulnerabilities at stake. It is possible to imagine situations in which individuals might group together on the basis of shared values or
attitudes to risk, and seek to use this shared understanding to promote data use. In coming together to define the terms of a trust, individuals would be able to express their agency and influence data use by defining their vision. The beneficiaries’ interest can be expressed in more restrictive or prudential terms, or may include a broader purpose such as the furthering of research or influencing patterns of data use. Current legal frameworks offer few opportunities to enable group action in this way.

The relationship between data rights and trusts

Almost any right or asset can be placed in trust. Trusts have already been established for rights relating to intellectual property and contracts, alongside a range of different types of property, including digital assets, and have proven themselves to be flexible in adapting to different types of asset across the centuries.7

Understanding what data rights can be placed in trust, when those rights arise and how a trust can manage those rights will be crucial in creating a data trust. Further work will be required to analyse the sorts of powers that a trustee tasked with stewarding those rights might be able to wield, and the advantages that might accrue to the trust’s beneficiaries as a result.

In the case of data about individuals, the GDPR confers individual rights in respect of data use, which could in principle be held in trust. These include ‘positive’ rights such as portability, access and erasure that would appear to be well-suited to being managed via a trust.

The development of data trusts will require further clarity on how these rights can be exercised. There is already active work on the extent to which (and conditions according to which) those positive rights may be mandatable to another party to act on behalf of an individual, such as a trustee. Opinions on the issue differ among GDPR experts and publication of the European Commission’s draft Data Governance Act raises new questions about how and whether data rights might be delegated to a trust. The feasibility of data trusts however does not hinge on a positive answer to this delegability question, since trust law offers a potential workaround that does not require any right transfer.8

As trusts develop, they will also encounter new questions about the limitations of existing rights and what happens when different rights interact.9 For example, organisations can analyse aggregated datasets and create profiles of individuals, generating inferences about their likely preferences or behaviours. These profiles – created as a result of data analysis and modelling – would typically be considered the intellectual property of the entity that conducted the analysis or modelling. While input data might relate to individuals, once aggregated and anonymised to a certain extent, it would no longer be considered as personal data under the GDPR. However, if inferences are classified as personal data within the scope of the GDPR, individual data-protection rights should apply. Nevertheless, as some authors have explained, exercising data rights on inferences classified as personal data remains limited, and particularly in the case of data portability could give rise to different tensions with trade secrets and intellectual property.10

An example helps illustrate the challenges at stake: in the context of education technologies, data provided by a student – from homework to online test responses – would be portable under the rights set out in the GDPR, but model-generated inferences about what learning methods would be most effective for that student could be considered as the intellectual property of the training provider. The establishment of a trust to govern the use of pupil data (just like any other ‘bottom-up’ data trust) could help shed light on those necessarily contested borders between intellectual property (IP) rights – that arise from creative input in developing the models that produce individual profiles – and personal data rights.

There will never be a one-size-fits-all answer on where to draw these boundaries between IP and personal data.11 Instead, what is needed is a mechanism for negotiating these borders between parties involved in data use. In such cases, data trustees could have a crucial public advocacy function in negotiations about the extent to which such inferences fall within the scope of portability provisions.

Examining the data rights that might be placed in trust points to important differences between the use of trusts as a data governance tool and their traditional application.

Typically, assets placed in trust have value at the time the trust is created. In contrast, modern data practices mean that data acquires value in aggregate – it is the bringing together of data rights in a trust that gives trustees power to influence negotiations about data use that would elude any individual. Whereas property is typically placed in trust to manage its value, data (or data rights) would be placed in trust in part to create value.

Another difference can be found in the ease with which assets can typically be removed from a trust. Central to the trusts proposition is that individuals would be able to move their data rights between trusts, within an ecosystem of trust entities that provide a choice in different types of data use.

The ecosystem of data trusts that would enable individuals to make choices between different approaches to data use and management presupposes the ability to switch from one trust to another relatively easily, probably more easily than in traditional trusts.

These differences need not present a barrier to the development of data trusts. The history of trusts demonstrates the flexibility of this branch of law, and trusts can have a range of properties or ways of working that are designed to match the intent of their creators.

Alternatives to trust law

The fiduciary duties owed by trustees to beneficiaries can be achieved by other legal models. For example, contractual frameworks or principal-agent relationships, can create duties between parties, with strong consequences if those duties are not fulfilled. Regulators can also perform a function similar to fiduciary responsibilities, for example in cases where imbalances of market power might have detrimental impacts on consumers. However, each has its limitations. For example:

  • Contracts allow use of data for a purpose. Coupled with an audit function, these can ensure that data is used in line with individual wishes, and – at least for simple data transactions – contracts would require less energy to establish than a trust. However, effective auditing relies on the ability to draw a line from the intention of those entering a contract to the wording of the contract then to its implementation. Given the complexity of patterns of data use – and the fact that many instances of undesirable data use arise from multiple inconsequential transactions – this function may be difficult to achieve. Due to their obligation of undivided loyalty, a trustee may be better placed and motivated to map intent to use and understand potential pitfalls arising
    from the interactions between data transactions.
  • Agents can be tasked with acting on behalf of an individual, taking a fiduciary responsibility in doing so. However, the interaction between an individual and their agent does not accommodate as easily the collective dimension enabled by the establishment of a trust, and it is in this collective dimension that the ability to disrupt digital power relationships lies. Another issue associated with the use of agents is accountability. Structures would be needed to ensure that agents could be held accountable by individuals, if they failed in their responsibilities. In comparison, under trust law, the Courts of Chancery (and the associated institutional safeguards) present a much stronger accountability regime.

Many jurisdictions do not have an equivalent to trust law. However, they may have mechanisms that could fulfil similar functions. For example, while Germany does not operate a trust law framework, some institutions have fiduciary responsibilities built into their very structure, with institutions such as Sparkassen, banks that operate on a cooperative and not-for-profit basis, taking on a fiduciary responsibility for their customers. Studying such mechanisms might uncover ways of delivering the key functions of trust law – stewarding the rights associated with data and delivering benefits for individuals, communities and society with strong safeguards against abuse.

Developing data trusts

Recent decades have brought radical changes in patterns of data collection and use, and the coming years will likely see further changes, many of which would be difficult to predict today. In this context, society will need a range of governance tools to anticipate and respond to emerging digital opportunities and challenges. In conditions of uncertainty, trusts offer a way of responding to emerging governance challenges, without requiring legislative intervention that can take time to produce (and is more difficult to adapt once in place).

Trusts occupy a special place in the UK’s legal system, and the skills and experience of the UK’s legal community in their development and use means it is well-placed to lead the development of data trusts. The next wave in the development of these governance mechanisms will require further efforts to analyse the assets that will be held by a data trust, investigate the powers that trustees may hold as a result, and consider the different forms of benefit that may arise as a result. Those seeking to capture this opportunity will need to:

  • clarify the limits of existing data rights
  • identify lessons from other jurisdictions in the use of fiduciary responsibilities to underpin data governance
  • support pilot projects that assess the feasibility of creating data trusts as a framework for data governance in areas of real-world need.

Problems and opportunities addressed by data trusts

Data trusts have the potential to address some of the digital challenges we face and could help individuals better position themselves in relationship to different organisations, offering new mechanisms for chanelling choices related to how their data is being used.

While organisations could also form data trusts, this section will deal only with data trusts where the beneficiaries are individuals (data subjects). Also, while trusts could manage rights over non-personal data, this section takes as starting point the opportunities coming from individuals delegating their rights (or beneficial interest therein) over personal data. In contexts where non-personal data is managed, the practical challenges in distinguishing personal and non-personal data need to be acknowledged, and it needs to be seen how managing mixed data sets influence the structure and running of a data trust.

There are a number of issues that might arise from setting up a data trust, which aims to balance the asymmetries between those who have less power and are more vulnerable (individuals or data subjects) and those who are in a more favoured position (organisations or data controllers). This section aims at briefly presenting a number of caveats in relation to data trusts and the ecosystem they create, however it should be noted that information asymmetries could also exist between individuals and trusts, not only between individuals and organisations.12

Trusts are usually established for defined purposes set out in a constitutional document. The data subjects will either come together to define their vision about the purposes of data use or will need to adhere to an established data trust and be well-informed about the purposes of the trust and how data or data rights are handled. In either case, it is of the utmost importance that those joining a data trust can do so in full awareness of the trust’s terms and aims.

This raises important ‘enhanced consent’ questions: what mechanisms, if any, are available to data trustees to ensure informed and meaningful consent is achieved? Will the lack of mechanisms for deliberation or consultation with beneficiaries involve liability for the trustees? What would the trustee role be in a participatory structure (active or purely managerial)? Might data trustees for instance draw upon the significant body of work in medical ethics to delineate best practice in this respect?

This set of questions is related to the issues raised in the next section, regarding the status, oversight and required qualifications of data trustees. Important questions arise around how expertise is attracted to this position when, as we will see below, the challenges for remunerating this role and the responsibilities and liabilities of trustees are significant.

2. The role of the trustee

The trustee will be in charge of managing the relationship between the trust’s beneficiaries and the organisations the trust interacts with. Trustees will have a duty of undivided loyalty to the beneficiaries (understood here as the data subjects whose data rights they manage) and they would be responsible for skilfully negotiating the terms of use or access to the beneficiaries’ data. They could also be held responsible if terms are less than satisfactory or if beneficiaries find fault with their actions (in which case the burden of proof is reversed, and it is for the data trustee to demonstrate that they have acted with undivided loyalty).

There are open questions as to if and how beneficiaries will be able to monitor the trustees’ judgement and behaviour and how beneficiaries will be able to identify fault when complex data transactions are involved. More complexity is added also if an ecosystem of data trusts is developed, where one person’s data is spread across several trusts.

At the same time, in the context of increased concerns coming from combining different datasets, in a scenario where one data trust manages a particular dataset about its beneficiaries and another trust manages a different dataset, where the combination of these two datasets could result in harm, should there be mechanisms for trusts to cooperate in preventing such harms? Or would trustees just inform beneficiaries of potential dangers and ask them to sign a liability waiver?

If and when a data trust relies on a centralised model (rather than a decentralised one, whereby the data remains wherever it is, and the data trustee merely leverages the data rights to negotiate access, etc.), one of the central attributions of the trustees will be to ensure the privacy and security of the beneficiaries’ data. Such a task would involve a high degree of risk and complexity (hence the likely preference for decentralised models).

It is unclear what type of technical tools or interfaces will be needed in order for trustees to access credentials in a secure way, for example, and who will make these significant investments in the technical layer. Potential inspiration could come from the new Open Banking ecosystem, where data sharing is enabled by secure Application Programming Interfaces (APIs) which rely on the banks’ authentication methodologies, so that third-party providers do not have to access users’ credentials.

Managing such demanding attributions raises questions related to what will be the triggers, incentives and training required for trustees to take up such a complex role. Should there be formal training and entry requirements? Could data trustees eventually constitute a new type of profession, which could give rise to a ‘local’ and potentially more nimble layer of professional regulation (on top of court oversight and potential legislative interventions), not unlike the multilayered regulatory structure that governs medical practice today?

3. Incentives and sustainability of data trusts

The data trust ecosystem model suggests the importance of competition between trusts for members, yet at this stage it is not clear how enough competition between trusts will emerge. At the same time, it is presumed that a data trust would work best when it operates on behalf of a large number of people. This gives the data trust a bargaining power position in relation to different organisations such as companies and public institutions. Will this create a dependence on network effects, and how can the negative implications be addressed?

Moreover, there are questions related to the funding model and incentives structure underlying the sustainability of data trusts. What will attract individuals to a data trust? For example, if the concern of the beneficiaries is to restrict and to protect data, will the trust be able to generate an income stream or will the trust rely on funding from other sources (e.g. from beneficiaries, philanthropists, etc.)? At the same time, if potential income streams are maximised depending on the use of the data, what are the implications for privacy and data protection?

In addition, what happens when individuals are simply unaware or uninterested in joining a data trust? Might they be allocated to a publicly funded data trust, on the basis of arguments similar to those that were relied on when making pension contributions compulsory? If so, what would constitute adequate oversight mechanisms?

When individuals are interested in joining a data trust, will they be lured by the promise of streamlining their daily interaction with data-reliant service providers, effectively relying on data trusts as a lifestyle, paid-for intermediary service providing peace of mind when it comes to safeguarding personal data? Will individuals be motivated to join a data trust in order to contribute to the common good in a way that does not entail long-term data risks? Will there be monetary incentives for people joining a data trust (whereby individuals would obtain monetary compensation in exchange for providing data)? Should some incentives structures – such as monetary rewards – be controlled and regulated, or in some cases altogether banned?

There are a number of possible funding models for data trusts:

  • privately funded
  • publicly funded
  • charging a fee or subscription from data trust beneficiaries (the individuals or data subjects) in return for streamlining and/or safeguarding their data interactions
  • charging a fee or subscription from those who use the data (organisations)
  • charging individuals for related services
  • a combination of the above.

The different funding options will have both sustainability, and larger data ecosystem implications. If the trust needs to generate revenue by charging for access to the data it stewards or for related services, the focus might start to levitate towards the viability and performance of the trust. The trusts’ performance will correlate with the demand side (organisations using the trust’s beneficiaries’ data), how many people join a data trust (potentially reinforcing network effects) and which data trust can compete better. Will these interdependencies diminish the data trusts’ role as a rebalancing tool for adjusting asymmetries of power and consolidating the position of the disadvantaged?

At the same time, if the data trust operates on a model where the beneficiaries are charged for the service, much depends on how that service is understood. If the focus is on monetary rewards, and the latter are not regulated, the expectations of return from the data trust will increase, hence affecting the dynamics of the relationships. For example, if the data trusts’ funding model implies companies pay back profit on the data used, they will have to make a number of decisions regarding their profitability and viability on the market. Will this reinforce some of the business models that are considerably criticised today, such as the dominant advertising based model?

In the case of publicly funded data trusts, public oversight mechanisms and institutions will need to be developed. At the moment, it is unclear who will be responsible for ensuring funds are transparently allocated based on input from individuals, communities and data-sharing needs. The currently low levels of data awareness also raise concerns about ways of building genuine and adequate engagement mechanisms. Further, the impact, benefit, results or added value created by the data trust will need to be demonstrated. This calls for building transparency and accountability means that are specific to publicly funded data trusts, grafting themselves on top of existing fiduciary duties (and Court oversight mechanisms).

4. Opportunities for organisations to engage with data trusts

Data trusts could offer opportunities for commercial or not-for-profit organisations in a variety of ways. Some of the benefits have been briefly mentioned in the introductory section, pointing to reputational benefits, legal compliance and future-proofing data governance practices. In this respect, one may imagine a scenario whereby large corporate entities (such as banks for instance) are keen to go beyond mere regulatory compliance by sponsoring a data trust in a bid to show how seriously they take their ethical responsibilities when it comes to personal data.

Such a ‘sponsored data trust’ would be strictly separate from the bank itself (absence of conflict of interest would have to be very clear). It could be flagged as enabling the bank’s clients to ‘take the reins’ of their data and benefit from insights derived from this data. All the data that would normally be collected directly by the bank would only be so collected on the basis of terms and conditions negotiated by the data trustee on behalf of the trust’s beneficiaries. The trustee could also negotiate similar terms (or negotiate to revise terms of existing individual agreements) with other corporate entities (supermarkets for instance).

Other potential benefits for corporate and research bodies are around the trusts’ ability to enable access to potentially better quality data that fits organisations’ needs and enables a more agile use of data. This reduces overhead and provides more ease of mind, based on the trustees’ fiduciary responsibility to the data subjects. A trustee would be able to spot and prevent potential harms, therefore reducing liability issues for organisations that could have otherwise arisen from engaging with individual data subjects directly. At the same time, trusts offer a way of responding to emerging governance challenges, without requiring legislative intervention that can take time to produce (and is more difficult to adapt once in place). A broader discussion about opportunities for commercial or not-for-profit organisations could be
considered for a future report.

Mock case study: Greenfields High School

 

Greenfields High School is using an educational platform to deliver teaching materials, with homework being assigned by online tools that track student learning progress, for example recording test scores. The data collected is used to tailor learning plans, with the aim of improving student performance.

 

Students, parents, teachers and school leadership have a range of interests
and concerns when it comes to these tools:

  • Students wish to understand what data is collected about them, how it is used and for how long it is kept. Parents want assurances about how their children’s data is used, stored, and processed.
  • Parents, teachers, and school leadership wish to compare their performance against that of other schools, by sharing some types of data.
  • The school wants to keep records of educational data for all pupils for a number of years to track progress. It also wants to be able to compare the effectiveness of different learning platforms.
  • The company providing the learning platform requires access to the data to improve its products and services.

 

How would a data trust work?

 

A data trust is set up, pulling together the rights pupils and parents have over the personal data they share with the education platform provider. It tasks a data trustee with the exercise of those rights with the aim of negotiating the terms of service to the benefit and limits established by the school, parents and pupils. It also aims at maximising the school’s ability to evaluate different types of tools (and possibly pool this data with other schools), within an agreed scope of data use that maintains the pupils’ and parents’ confidence that they are minimising the risks associated with data sharing.

The trust will be able to leverage its members’ rights to data portability and/or access (under the GDPR) when the school discusses onwards terms of data usewith the educational platform service provider.

 

The data trust includes several schools who have joined a group of common interest in a certain educational approach. This group is overseen by a board. One of the persons sitting on that board is appointed as data trustee.

Chapter two: data cooperatives

The next chapter describes data cooperatives as a way to give more control to members over their data, and to repurpose the data in their interests

Image credit: sefa ozel

This is chapter one from Exploring legal mechanisms for data stewardship – a joint publication from the Ada Lovelace Institute and the AI Council. Read the full report here.

Footnotes

  1. Chambers, R. (2010). Distrust: Our Fear of Trusts in the Commercial World. Current Legal Problems, [online] 63(1), pp.631–652. Available at: https://academic.oup.com/clp/article-abstract/63/1/631/379107 [Accessed 18 Feb. 2021].
  2. British Academy, techUK and Royal Society (2018). Data ownership, rights and controls: seminar report. [online] The British Academy. Available at: www.thebritishacademy.ac.uk/publications/data-ownership-rights-controls-seminar-report [Accessed 18 Feb. 2021].
  3. Delacroix, S. and Lawrence, N. D. (2019) ‘Bottom-up data Trusts.’
  4. Jasmontaite, L., Kamara, I., Zanfir-Fortuna, G. and Leucci, S. (2018). Data Protection by Design and by Default: Framing Guiding Principles into Legal Obligations in the GDPR [online] European Data Protection Law Review, 4(2), pp.168–189. Available at: https://doi.org/10.21552/edpl/2018/2/7. [Accessed 18 Feb. 2021].
  5. Delacroix, S. and Lawrence, N. D. (2019) ‘Bottom-up data Trusts’.
  6. Ibid.
  7. McFarlane, B. (2019). Data Trusts and Defining Property. [online] Oxford Law Faculty. Available at: www.law.ox.ac.uk/research-andsubject- groups/property-law/blog/2019/10/data-trusts-and-defining-property [Accessed 18 Feb. 2021].
  8. Prof. McFarlane puts forward this potential workaround in a conversation with Paul Nemitz and Sylvie Delacroix. See Data Trusts Initiative (2021) Understanding the Data Governance Act: in conversation with Sylvie Delacroix, Ben McFarlane and Paul Nemitz.
  9. For further discussion of this and other issues in the development of data trusts, see: Data Trusts Initiative (2020b). Data Trusts: from theory to practice, working paper 1 [online] Data Trusts Initiative. Available at: https://static1.squarespace.com/ static/5e3b09f0b754a35dcb4111ce/t/5fdb21f9537b3a6ff2315429/1608196603713/Working+Paper+1+-+data+trusts+- +from+theory+to+practice.pdf [Accessed 18 Feb. 2021].
  10. Wachter, S. and Mittelstadt, B. (2018). A Right to Reasonable Inferences: Re-Thinking Data Protection Law in the Age of Big Data and AI. [online] papers.ssrn.com. Available at: https://papers.ssrn.com/abstract=3248829 [Accessed 18 Feb. 2021].
  11. A broader discussion could be around whether drawing boundaries is the right approach or whether we might need a different regime for inferences.
  12. For a more detailed discussion on caveats and shortcomings see O’hara, K. (2020) ‘Data Trusts’. For further discussion regarding the development of data trusts see: Data Trusts Initiative (2020) Data Trusts: from theory to practice, working paper 1.

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