Data regulation for a sustainable Berlin: Legal policy background for scenario-based evaluation of regulatory approaches

Datenregulierung für ein nachhaltiges Berlin: Rechtspolitische Hintergründe für die szenarienbasierte Bewertung von Regulierungsansätzen

This working paper develops a conceptual basis for exploring options for sustainable data governance for Berlin in the Ecornet project "Data governance and regulation for a sustainable Berlin". Issues regarding the adequate framework for the governance of data - the rules governing the practices or procedures that determine who can use data, in what way and for what purposes - have been discussed for some time in a broad variety of contexts. Important legal determinations for such rules will be made in the very near future in many places. The regulation of the data economy is frequently seen as a key issue for economic development, for research, civil rights or national or European economic sovereignty. However, the requirements that need to be placed on the rules and structures of data governance from a socio-ecological perspective have not yet been sufficiently reflected upon and examined.

At the same time, the need for governing society and economy towards sustainability goals is becoming increasingly clear. Digital technologies can be particularly effective instruments for achieving certain goals or interests. Just as these technologies, if used in pursuit of socio-ecological goals, could provide a highly effective toolbox for the much-needed sustainability transformation, wrong policy-choices lead to potentially serious environmental problems difficult to contain in regulatory terms.

The regulation of access and usage for data will be decisive in determining whether positive socio-ecological scenarios or fears of an intensification and acceleration of damaging growth dynamics as a result of digitalisation will be realised. Its relevance with regard to sustainability policies can be illustrated by two overarching functions of data regulation. On the one hand, access and control of the use of data are necessary conditions for political action to implement sustainability policies: neither environmental regulations on the use of energy or resources in digital applications, "green procurement" of software or hardware, nor precautionary control of possibly risk-prone algorithms can be implemented without governments having access to relevant data. At the same time, economic policies which aim at strengthening local and sustainable actors must focus on access to relevant data, e.g. in order to enable these actors who compete with the ubiquitous services offered by "data-rich" corporations.

Against the background of the socio-ecological importance of regulating data use, this working paper analyses three ideal types of data regulation that understand data rights in very different ways: A prominent proposal that seeks to legally anchor private rights of disposal or exploitation of data, the idea of understanding data as public goods, and the alternative conception of data rights as individual rights to political participation and civic co-creation. Given the variety of different functions and application contexts of data-driven technologies, a socio-ecologically informed data regulation will not correspond to any of these ideal types, but rather - depending on the sectors and actor constellations concerned - include hybrid configurations. Municipal data regulation, however, will be particularly suitable for experimentation with possibilities of data regulation oriented towards societal values and needs, while also enabling genuine participation and co-design by citizens. Current regulatory proposals at the European level, which might institutionalise possibilities for a proactive "data donation" for concrete goals of data use, could show a way to regulate sustainable and inclusive data governance in the municipal space.

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Peter Gailhofer

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Wissen. Wandel. Berlin. Report 18

Project Staff

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Digitization, smart city, Berlin, environmental risks, sustainability, environmental protection, sustainability goals, data regulation, data economy, data governance, data rights, data governance regulation, data trusts, data property, data sharing