Since the start of this year I am actively tracking the suite of new European laws being proposed on digitisation and data. Together they are the expression into law of the geopolitical position the EU is taking on everything digital and data, and all the proposed laws follow the same logic and reasoning. Taken together they shape how Europe wants to use the potential and benefits of digitisation and data use, including specifically for a range of societal challenges, while defending and strengthening citizen rights. Of course other EU legal initiatives in parallel sometimes point in different directions (e.g. EU copyright regulations leading to upload filters, and the attempts at backdooring end-to-end encryption in messaging apps for mass surveillance), but that is precisely why to me this suite of regulations stands out. Where other legal initiatives often seem to stand on their own, and bear the marks of lobbying and singular industry interests, this group of measures all build on the same logic and read internally consistent as well as an expression of an actual vision.

My work is to help translate the proposed legal framework to how it will impact and provide opportunity to large Dutch government data holders and policy departments, and to build connections and networks between all kinds of stakeholders around relevant societal issues and related use cases. This to shape the transition from the data provision oriented INSPIRE program (sharing and harmonising geo-data across the EU), to a use needs and benefits oriented approach (reasoning from a societal issue to solve towards with a network of relevant parties towards the data that can provide agency for reaching a solution). My work follows directly from the research I did last year to establish a list of EU wide high value data sets to be opened, where I dived deeply into all government data and its governance concerning earth observation, environment and meteorology, while other team members did the same for geo-data, statistics, company registers, and mobility.

All the elements in the proposed legal framework will be decided upon in the coming year or so, and enter into force probably after a 2 year grace period. So by 2025 this should be in place. In the meantime many organisations, as well as public funding, will focus on already implementing elements of it even while nothing is mandatory yet. As with the GDPR, the legal framework once in place will also be an export mechanism of the notions and values expressed in it to the rest of the world. This as compliance is tied to EU market access and having EU citizens as clients wherever they are.

One element of the framework is already in place, the GDPR. The newly proposed elements mimic the fine structures of the GDPR for non-compliance.
The new elements take the EU Digital Compass and EU Digital Rights and Principles for which a public consultation is now open until 2 September as a starting point.

The new proposed laws are:

Digital Markets Act (download), which applies to all dominant market parties, in terms of platform providers as well as physical network providers, that de facto are gatekeepers to access by both citizens and market entities. It aims for a digital unified market, and sets requirements for interoperability, ‘service neutrality’ of platforms, and to prevent lock-in. Proposed in November 2020.

Digital Services Act (download), applies to both gatekeepers (see previous point) and other digital service providers that act as intermediaries. Aims for a level playing field and diversity of service providers, protection of citizen rights, and requires transparency and accountability mechanisms. Proposed in November 2020.

AI Regulatory Proposal (download), does not regulate AI technology, but the EU market access of AI applications and usage. Market access is based on an assessment of risk to citizen rights and to safety (think of use in vehicles etc). It’s a CE mark for AI. It periodically updates a list of technologies considered within scope, and a list of areas that count as high risk. With increasing risk more stringent requirements on transparency, accountability and explainability are set. Creates GDPR style national and European authorities for complaints and enforcement. Responsibilities are given to the producer of an application, distributors as well as users of such an application. It’s the world’s first attempt of regulating AI and I think it is rather elegant in tying market access to citizen rights. Proposed in April 2021.

Data Governance Act (download), makes government held data that isn’t available under open data regulations available for use (but not for sharing), introduces the European dataspace (created from multiple sectoral data spaces), mandates EU wide interoperable infrastructure around which data governance and standardisation practices are positioned, and coins the concept of data altruism (meaning you can securely share your personal data or company confidential data for specific temporary use cases). This law aims at making more data available for usage, if not for (public) sharing. Proposed November 2020.

Data Act, currently open for public consultation until 2 September 2021. Will introduce rules around the possibilities the Data Governance Act creates, will set conditions and requirements for B2B cross-border and cross-sectoral data sharing, for B2G data sharing in the context of societal challenges, and will set transparency and accountability requirements for them. To be proposed towards the end of 2021.

Open Data Directive, which sets the conditions and requirements for open government data (which build on the national access to information regulations in the member states, hence the Data Governance Act as well which does not build on national access regimes). The Open Data Directive was proposed in 2018 and decided in 2019, as the new iteration of the preceding Public Sector Information directives. It should have been transposed into national law by 1 July 2021, but not all MS have done so (in fact the Netherlands has just recently started the work). An important element in this Directive is EU High Value Data list, which will make publication of open data through APIs and machine readable bulk download mandatory for all EU member states for the data listed. As mentioned above, last year I was part of the research team that did the impact assessments and proposed the policy options for that list (I led the research for earth observation, environment and meteorology). The implementation act for the EU High Value Data list will be published in September, and I expect it to e.g. add an open data requirement to most of the INSPIRE themes.

Most of the elements in this list are proposed as Acts, meaning they will have power of law across the EU as soon as they are agreed between the European Parliament, the EU council of heads of government and the European Commission and don’t require transposition into national law first. Also of note is that currently ongoing revisions and evaluations of connected EU directives (INSPIRE, ITS etc.) are being shaped along the lines of the Acts mentioned above. This means that more specific data oriented regulations closer to specific policy domains are already being changed in this direction. Similarly policy proposals such as the European Green Deal are very clearly building on the EU digital and data strategies to achieving and monitoring those policy ambitions. All in all it will be a very interesting few years in which this legal framework develops and gets applied, as it is a new fundamental wave of changes after the role the initial PSI Directive and INSPIRE directive had 15 to 20 years ago, with a much wider scope and much more at stake.

Risk Board Game
The geopolitics of digitisation and data. Image ‘Risk Board Game’ by Rob Bertholf, license CC BY

Today I contributed to a session of the open data research groups at Delft University. They do this a few times per year to discuss ongoing research and explore emerging questions that can lead to new research. I’ve taken part a few times in the past, and this time they asked me to provide an overview of what I see as current developments.

Some of the things I touched upon are similar to the remarks I made in Serbia during Open Data Week in Belgrade. The new PSI Directive proposal also was on the menu. I ended with the questions I think deserve attention. They are either about how to make sure that abstract norms get translated to the very practical, and to the local level inside government, or how to ensure that critical elements get connected and visibly stay that way (such as links between regular policy goals / teams and information management)

The slides are embedded below.

Open Questions by Ton Zijlstra, at TUD

Iryna Susha and Bastiaan van Loenen in the second part of our afternoon took us through their research into the data protection steps that are in play in data collaboratives. This I found very worthwile, as data governance issues of collaborative groups (e.g. public and private entities around energy transition) are regularly surfacing in my work. Both where it threatens data sovereignty for instance, or where collaboratively pooled data can hardly be shared because it has become impossible to navigate the contractual obligations connected to the data that was pooled.

Last fall the European open data portal project published two reports. One on the potential economic value of open data in Europe, the other taking a look at the maturity of open data efforts in European countries.

Both reports contain interesting insights and conclusions.
Both reports are also useless.

Because the data underneath the reports has not been published. Without explanation.

That is of course rather surprising because the subject of the reports is open data. At least when the topic is openness, all the related material should be open. That is why, when we built the EU PSI Scoreboard in 2011, we published all the underlying data right alongside the scoreboard. As does the Open Data Barometer. As does the Open Data Index. As does the Digital Agenda Scoreboard. But not the European Open Data Portal project. I would have expected the data under both reports by the European Open Data Portal to actually be available in the European Open Data Portal.

Missing data destroys the report’s value
Not having the data renders the report on open data maturity useless:

  • it makes interpretation of the conclusions impossible, as there is no way to see if the assertions chime with the collected data, nor if that data chimes with ones own experience in the field
  • it makes any meaningful discussion about the merits of the report impossible, even where it gives rise to questions (such as, what makes Bulgaria an open data trendsetter?)
  • it makes formulating actions aimed at improvement impossible, as the data to determine what improvements can be made are not available

Thus after reading the report nobody is, nor can they be, any the wiser as to how to move forward.

Cold feet
I approached the European Commission, and through them the authors, to request the data. After a few messages back and forth, the reason that the data is not published became clear: the national representatives involved in the project, such as the members of the EU PSI Group, have witheld publication of the data. I assume because of cold feet and dreading actual comparison between countries. Not publishing the data however, even if not intended as such, is also sending a clear message: “we’re not serious about openness.” The verdict when it comes to European open data maturity therefore is likely “not very mature”.

Requesting data per country needed
A very few countries may pro-actively publish the data about themselves, but most will not. To obtain the data used for the open data maturity report, it is now needed to approach all the national government representatives involved and request the data from them.

Which I intend to do. Help is welcome. [UPDATE: I have approached most of the governments involved, to ask for the information that could make the maturity report actually useful.]

Closed
Off to get some closed data