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By Katarzyna Ziółkowska, PhD candidate at the University of Warsaw, visiting research student at the University of Birmingham, member of the Centre for Research on Legal Aspects of the Blockchain Technology at the University of Warsaw

15 August 2019

The emergence and further rapid development of distributed ledger technologies have made the administration face unprecedented challenges. On the other hand, the public sector was given a new instrument with the potential to improve its functioning. The blockchain technology has been noticed first by the private sector as a solution for eliminating the middle-man from transactions between two parties, an undeniable information storage medium and a secure and effective data processing tool. Due to distinctive features of this technology (decentralisation and anonymity or pseudonymity of its users) and the lack of regulation in this area, public administration (regulators of capital markets, tax offices, prosecutors) are experiencing serious difficulties in preventing or even tackling opportunistic behaviour.

Simultaneously, as the experience of some countries shows, blockchains can be also successfully used to improve the functioning of public administration, adapting it to the new technological reality. This notwithstanding, the possibilities of using blockchain for this purpose are not unlimited. In addition to the obvious technological, economic and social aspects, there are also legal restrictions. What's more, the public sector is more intensively regulated, the regulations are often very detailed, which is why the implementation of blockchains in the public sector looks completely different than in the private sector. In this blogpost, I will try to point out some of the problems that legislators have to face while regulating the implementation of blockchains in public administration as well as a potential solution to these problems.

The importance of an adequate legal framework for blockchain implementation in the public sector

Public administration, as the emanation of imperious functions of the State, processes and deals with the registration of much larger amounts of data than private entities. At the same time, it has to guarantee the transparency and accountability of data processing, correctness and security of the recorded data. Therefore, legal obligations towards public administration should be much bigger than towards private entities. And this is, in fact, the case - administrative bodies are, as a rule, subject to very detailed regulations related to data circulation, storage or exchange, just to name a few. However, this does not answer the question: “Why the legal framework for blockchain implementation in the public sector is so important?”. There are many private entities that also process large amounts of data (like social media platforms), but legal regulations interfere in their activities to a much lesser extent.

The answer to this question results from the rule of law and the right to good administration. At the core of the rule of law, that underpins the legal order of most of the western countries, has traditionally been the principle of legality. It means that the state, government, and any person acting under government authority (including a corporation), may only act according to law, and legal norms must specify their competences, tasks and procedures, thus setting the limits of their activity. In other words, public authorities can operate only within these limits. Consequently, as individuals are free to act in accordance with the principle that what is not expressly prohibited by law is permitted, public authorities may act only there and in so far as the law authorizes them.

Therefore, the possibility of transforming administration by means of blockchains is not only limited by various existing legal regulations, but also new regulations are necessary to enable that transformation. So as the first and most important requirement is ensuring compliance with the principle of legality, there are also obligations arising from relevant legal safeguards, the need to ensure the highest technological reliability and - last but not least - preparing the society (combating digital exclusion, providing information, training public officials).

Building the legal framework when discretion, technological failure and incompliance aren’t an option

When it comes to blockchains and public administration, the introduction of new laws, modification of or even simply compliance with existing ones must be done with a view to the features of this technology. In this blogpost, I purposely use the term blockchains, not blockchain. Although some basic assumptions may be common, information systems based on blockchain technology will eventually be as many as there are practical applications of this technology.

The implementation of blockchains in the public sector is, therefore, first and foremost, not a legal but technological and management issue. Modernization of public administration with the use of blockchains should not be an end in itself, but serve to solve a problem of specific public authority, introduce a better (safer, faster, more accessible) way of providing a specific public service or create specific facilitations at the state level. Such a focus on increasing the efficiency of public administration with blockchains makes it possible to determine the particular features that a given blockchain-based system should have. Only at this stage, a comprehensive legal analysis can begin to identify additional features of the system that are needed to ensure compliance with legal regulations.

For instance, the main issue that potentially hampers blockchains’ development and adoption in the public sector is, ironically, the same thing that made them so appealing at the first place: public, immutable ledger. There are multiple doubts and concerns as to the compliance of blockchains with privacy laws and data protection rights, but computer scientists also managed to come up with several potential solutions to these problems[1]. Their usefulness, however, will always depend on the particular implementation case.

But what about the principle of legality and restrictions related thereto? The purchase and widespread implementation of the system based on blockchain technology by a public authority (in particular in external contacts with citizens) cannot take place until legislators create the appropriate legal framework (authorizations and procedures). That creates a paradox – new laws cannot be introduced because there is no fully deployed technology in use, and the technology cannot be fully deployed because there are no laws enabling that.

Technology neutrality – another complication or a potential solution?

At this point, it is necessary to add to the discussion one more notion – the principle of technology neutrality. There is no consensus among experts as to the exact meaning of that principle but one of the most frequently cited is particularly relevant to the problem of blockchain implementation in the public sector. Therefore, the principle of technology neutrality could mean that legal rules should not favour or discriminate against a particular technology (Reed, 2007). To be more specific, legislators should refrain from using regulations as a means to push the market toward a particular structure that the regulators consider optimal. In a highly dynamic market, regulators should not try to pick technological winners (Maxwell, Bourreau, 2014). The requirement of technology neutrality, understood in this way, is particularly important in the public sector, as a highly regulated sphere.

Adding that to the impasse that was described before (no regulation without technology and no technology without regulations), at a glance, the situation seems even more complicated – the legislators cannot directly support the use of blockchains in the public sector. But in reality, it's not a complication, but actually a hint. The emphasis in regulations aimed at allowing the use of blockchains in public administration should be put not on ordering public authorities to implement blockchain, but simply on enabling such implementation next to other technologies. For the rest - legislators, instead of describing the features that blockchains used in public administration must have, should rather indicate the effects (including legal consequences) to be achieved in a given area of ​​administration (without discriminating or favouring existing technologies as well as future technologies). Such an approach would not only ensure compliance with the principles of legality and technology neutrality but also incentivises technology providers to propose tailored and effective solutions.

The above-described regulatory problems are obviously of a much more complex nature and the term “blockchain revolution in public administration” created in public discourse well reflects that[2]. New perspectives for public administration include: the possibilities to benefit from the use of blockchains, the need to fight effectively against abuses carried out using blockchain technology, and the general necessity to keep up with changing reality. Technological modernisation of public administration in that broad sense is therefore essential and it has to be done in line with the rule of law and in order to ensure the rule of law.

References:

Berryhill, J., Bourgery, T., Hanson, A., 2018, June. Blockchains Unchained: Blockchain Technology and its Use in the Public Sector, OECD Working Papers on Public Governance, 28.

European Parliament resolution of 3 October 2018 on distributed ledger technologies and blockchains: building trust with disintermediation (2017/2772(RSP)).

Maxwell, W.J., Bourreau, M., 2014, November. Technology neutrality in Internet, telecoms and data protection regulation. Computer and Telecommunications L. Rev. (2014 forthcoming), p. 1.

Reed, C., 2007, September. Taking Sides on Technology Neutrality. SCRIPT-ed, 4(3), p. 266.

Key words: blockchain, public administration, legal framework, regulation, principle of legality, technology neutrality

[1] See more at: https://www.ibm.com/downloads/cas/2EXR2XYP and https://www.eublockchainforum.eu/sites/default/files/reports/20181016_report_gdpr.pdf

[2] See: https://openledger.info/insights/blockchain-public-governance/ or https://www.eublockchainforum.eu/sites/default/files/reports/eu_observatory_blockchain_in_government_services_v1_2018-12-07.pdf

This is a three part series about long data. Part I focuses on the definition, quality and value. Part II explores the promises of blockchain to deliver data integrity for long data. Finally, Part III outlines the potential obstacles to guaranteeing data integrity for long data even supported by technologies such as blockchain.

We define ‘long data’ as longitudinal data or “data which tracks the same sample at different points in time” An example of ‘long data’ (sometimes referred to as panel data[1]) in the health context, would be data that track the same cohort of clinical trial subjects over time in relation to the same health variable (for example, blood pressure).

The Long Data Integrity Challenge

In the first blog of this two-part series on ‘long data’, we saw how the ‘shelf life’ of data, which we called its ‘longevity’ varies heavily, depending on a range of contextual factors. In the second part of this series, our focus is on understanding why long data can be of great value, particularly in the context of health data. As we saw in Part I of this series, the value any data only exists “in use”. In other words, we can argue that data has no intrinsic value, rather, it has value when considering its “potential use” in the future.

How then, can we understand the potential value of ‘long data’? To illustrate, long data may track several clinical trial subjects over time, yet, the actual value of the longitudinal data to the hospital, pharmaceutical company, science, and society, etc., may vary significantly dependent on many different contextual factors. For example, long data may include data from thousands of patients over 5 years, yet, if it represents a single run in a clinical trial, then – without more - it might have little or no value at al, at least until the required number of trials are completed to enable meaningful evaluation of the data. Equally, a long dataset might have dozens of observations over several years and thousands or even millions of data points, but it may be collected from a mere handful of subjects (consider, for example, early fMRI trials). In this case, unless more data is collected from more subjects, the value of the longitudinal dataset is unlikely to improve due to the initial lack of subjects in the sample (with some exceptions).

All these contextual issues contribute to what we refer to as the “Long Data Integrity Challenge”: although a longitudinal dataset can be extended and improved over time, thereby enhancing its value, it is vitally important to ensure that all contextual aspects of data collection, data handling and data storage are duly recorded and systematized. This systematized approach not only is necessary to alleviate such longitudinal data issues as potential noise, omissions, errors, etc, but it also simplifies the detection of false, “fake”, or fraudulent results.

Blockchain as a Possible Solution to the Long Data Integrity Challenge

Recent advances in blockchain technologies offer an potential solution to the Long Data Integrity Challenge, which might be harnessed to increase data life-span, ensure its integrity, facilitiate its accessibility and thereby increase its value. Blockchains are, in essence, an append-only distributed databases, these technologies are – at core, concerned with the management of data, for the specific purpose of ensuring data security on Blockchain-based databases (Gaetani et al., 2017) by providing a technological means for uniform, consistent and secure data collection, handling, and storage. A Blockchain is a cryptographic protocol that allows a network of computers to collectively maintain a shared ledger of information without the need for verification by a trusted third party. This information is stored in a chronological, cryptographically secured ‘chain’ of data that serves as an immutable and irreversible record of transactions.

Figure 1 "Crazy anti-vaxxers protesting outside 111 Bourke Street, Melbourne" by Alpha, 2017

Because the value of longitudinal data depends, in large measure, on its integrity, which is especially important in the health context (particularly in medical contexts when human life may be at stake), Blockchain technology has the potential to ensure that long health data retains its value by automatically and cryptographically verifying and cross-verify data at every step. This, in turn, may help to reduce the risk of noise, errors, and fraud.

Consider, for example, the Measles, Mumps, and Rubella (MMR) vaccination controversy. In 1998, The Lancet published a paper by Andrew Wakefield and his co-authors (Wakefield et al., 1998) which argued that there was a causal link between the MMR vaccination and autism in children. Subsequent attempts to replicate the initial trials, as well as the revelation that Wakefield had a significant conflict of interest in conducting a trial (apparently, he received payments from a law firm interested in implicating health services by establishing the link between the vaccine and autism), led to the retraction of the article by The Lancet once the study was recognized to be fraudulent (see, e.g., Godlee et al., 2011 for detail). Yet, it took over 12 years (the actual retraction took place in 2010) and much public debate for the story to reach this conclusion. To date, the original piece by Wakefield and co-authors fuels the anti-vaccination movement in the UK and beyond affecting thousands if not millions of human lives. Now imagine that blockchain technology were available in 1998 and provided a secure repository of the MMR trials’ data. It is clear in this case that (1) the initial trial report would be taken far less seriously because it would be in contradiction with previous results and (2) that even if it were taken seriously, it would not have taken this much time to retract the originally reported results due to the data being available for the scientific community and the original authors accountable for its quality.

All this suggests that blockchain technology may help alleviate or even eliminate the possibility that data integrity of a long-lived datasets could be jeopardized thereby ensuring that data lives longer and is of more use to the organizations and society.

References

Maletic, J.I. and Marcus, A., 2000, October. Data Cleansing: Beyond Integrity Analysis. In Iq (pp. 200-209).

Demchenko, Y., Grosso, P., De Laat, C. and Membrey, P., 2013, May. Addressing big data issues in scientific data infrastructure. In Collaboration Technologies and Systems (CTS), 2013 International Conference on (pp. 48-55). IEEE.

Gaetani, E., Aniello, L., Baldoni, R., Lombardi, F., Margheri, A. and Sassone, V., 2017. Blockchain-based database to ensure data integrity in cloud computing environments.

Godlee, F., Smith, J., Marcovitch, H. Wakefield's article linking MMR vaccine and autism was fraudulent. BMJ.2011;342:c7452.

Katal, A., Wazid, M. and Goudar, R.H., 2013, August. Big data: issues, challenges, tools and good practices. In Contemporary Computing (IC3), 2013 Sixth International Conference on (pp. 404-409). IEEE.

Lee, J., Bagheri, B. and Kao, H.A., 2015. A cyber-physical systems architecture for industry 4.0-based manufacturing systems. Manufacturing Letters, 3, pp.18-23.

Levitin, A.V. and Redman, T.C., 1993. A model of the data (life) cycles with application to quality. Information and Software Technology, 35(4), pp.217-223.

Bernd Panzer-Steindel. Data integrity. CERN Technical Report Draft 1.3, CERN/IT, April 8, 2007.

Monino, J.L., 2016. Data value, big data analytics, and decision-making. Journal of the Knowledge Economy, pp.1-12.

Wakefield, A., Murch, S.A., Linnell, J., Casson, D., Malik, M. Ileal-lymphoid-nodular hyperplasia, non specific colitis, and pervasive developmental disorder in children. The Lancet. 1998;351:637-641.

Woerner, S.L. and Wixom, B.H., 2015. Big data: extending the business strategy toolbox. Journal of Information Technology, 30(1), pp.60-62.

[1] See https://www.nlsinfo.org/content/getting-started/what-are-longitudinal-data for complete definition.