Confronting Data Inequality

Control over data conveys significant social, economic, and political power. Unequal control over data—a pervasive form of digital inequality—is a problem for economic development, human agency, and collective self-determination that needs to be addressed. This Article takes steps in this direction by analyzing the extent to which law facilitates unequal control over data and by suggesting ways in which legal interventions could lead to more equal control over data. We use the term "data inequality" to capture unequal control over data-not only in terms of having or not having data, but also in terms of having or not having the ''power to datafy" (i.e., deciding what becomes or does not become data). We argue that data inequality is a function of unequal control over the infrastructures that generate, shape, process, store, transfer, and use data. Existing law often regulates data as an object to be transferred, protected, shared, and exploited and is not always attuned to the salience of infrastructural control over data. While there are no easy solutions to the variegated causes and consequences of data inequality, we suggest that retaining flexibility to experiment with different approaches; reclaiming infrastructural control; systematically demanding enhanced transparency; pooling data and bargaining power; and developing differentiated and conditional access to data mechanisms may help in confronting data inequality more effectively going forward.

Published in Columbia Journal of Transnational Law, Volume 60, Issue 3 (2022), pp. 829-956. The paper was initially written as a background paper for the World Development Report 2021: Data for Better Lives. It draws on ideas developed in Guarini Global Law & Tech’s Global Data Law project.

Indicators 2.0: From Ranks and Reports to Dashboards and Databanks

The World Bank Headquarter Atrum as depicted by Jaakko H., licensed CC-BY-SA.

In September 2021, the World Bank Group’s management announced its decision to discontinue one of its most notable and controversial products – the Doing Business Report. Michael Riegner had welcomed the death of indicators as a technology of governance, noting that we are now in the era of “governance by data”. Proliferation of digital data, increased reliance on sensing technologies, creation of digital products by international organizations, and the funding of large-scale digital infrastructure projects (e.g., e-government, e-health) by the multilateral development banks, including the World Bank, are ushering new forms of global governance.  Riegner suggests that this turn to digital technologies and computational capacity for big data analytics is one of the reasons for indicators’ demise:

“why use aggregated indicators based on expert surveys when you can digitally collect and process actual raw data, disaggregated all the way down to the smallest unit of relevance?”

If by this question Riegner intimates that indicators – understood as “named collection of rank-ordered data that purports to represent the past or projected performance of different units…[wherein] data are generated through a process that simplifies raw data about a complex social phenomenon” (see here) – can be written off as a technology of governance, his dismissal may be too swift. First, the kind of “raw” data that would be required to make accurate assessments may not be readily available. Moreover, if commensurability is to be achieved, one would require access to roughly similar type of data for each unit of analysis – no small feat given the unequal availability and distribution of data across countries, within countries, and between public and private actors. Second, even if global governance actors increasingly embrace differentiated governance that is tailored to specific actors or entities, there will be continued demand for metrics and representations that simplify and translate complex data into legible and comparable information. Third, as Riegner himself acknowledges, other prominent indicators likes PISA, Human Development Index, Rule of Law Index, and Freedom Scores continue to exist. Whether their influence is declining, as Riegner suggests, remains to be seen.

The World Bank itself is showing no sign of giving up on the production of indicators. At the same time, how indicators are disseminated have changed: the World Bank has turned to dashboards as a means of presenting and contextualizing indicators, and has “datified” indicators, making them accessible as data through the DataBank. The Bank has also begun experimenting with new methodologies, embracing open-source “big data” to construct indicators.

These changes – dashboardization, datafication, and the turn to “big data” as a source for indicators – alter not only how indicators are produced and used (and by whom), but also how they govern, shifting and re-constituting the sites of expertise and power. The cancellation of the Doing Business report thus might not be evidence of the demise of the indicators but a consequence of a shift (begun several years earlier) towards a different process of indicator construction and dissemination that, in turn, implicates different means by which governance effects are achieved.

This blogpost was published by the Völkerrechtsblog as a response to Michael Riegner’s “The End of Indicators”. It draws on ideas developed in the Institute for International Law & Justice projects on indicators as a technology of global governance and on infrastructures-as-regulation.