Thesis Title
The complex system of the law of data

Research Description

Over the past few decades, an informational revolution has placed data at the centre of our social, economic and political lives. The law ought to settle the new relationships and modes of organisation this revolution has produced in ways that are in alignment with our values. Yet it is widely acknowledged that its response has been inadequate; the law of data in Australia (as elsewhere) remains the site of great dissatisfaction

The academic literature ascribes these problems to several related failures. The first is an ontological failure: our laws miss the mark because our understanding of the nature of data does not properly account for its technological properties nor the sort of value and power that amassing data produces. A second failure is a lack of comprehensive indexing over the values to which the law of data aims. Scholarship has increasingly identified the ways in which the different values implicated by the law of data overlap or are in tension, including for instance, the distributive effects of privacy law and the privacy implications of competition law. A further failure arises from apparently practical limits on current regulatory and enforcement institutions, with identified issues including ineffective civil procedure in the courts, disempowered and underfunded privacy and competition regulators and the effects of geopolitical competition. Finally, there is a methodological failure, stemming from a focus on individual elements of how law regulates datathat misses the complex ways in which different rules interact and produce unexpected, emergent effects.

Each of these failures is interconnected. They stem from thinking about data, its law and their relationship to society in isolated and linear ways. For instance, the same general error that has led to the misvaluation of data (an individualised isolation of data, missing population-level effects) has also led to the proliferation of notice-and-consent procedures as a guarantee of privacy (isolation of the individual data subject). Many efforts to tackle these identified failures fall to the same pattern, treating them either as isolated problems or connecting only a small number of relevant dimensions without recognising their shared systemic roots and the limitations of localised responses.

My proposed research direction is different. I seek to provide a theoretical framework that can integrate the relevant dimensions of data and its law holistically through the rubric of complex systems theory. Complex systems theory is an interdisciplinary approach that emphasises interactions between objects of analysis, identifying emergent and non-linear effects including feedbacks loops, specialisations/modularisations, redundancies and critical behaviours. This approach is well placed for providing a framework for the law of data because the law of data is drawn from diverse, interacting sources, and data’s function in our political economy is a complex combination of intermediation and prediction.

Supervisors
Prof Kimberlee Weatherall, University of Sydney