Erdos: U.K. Data Protection Act May Stifle Research

David Erdos of the University of Oxford kindly alerted me to two recent publications in which he warns that the United Kingdom's Data Protection Act 1998, which implements European Union requirements, could inhibit social research in much the same way human subjects laws and regulations have done in the United Kingdom, Canada, and the United States.

David Erdos, "Systematically Handicapped? Social Research in the Data Protection Framework, Information & Communications Technology Law 20, no. 2 (2011): 83-101,
doi: 10.1080/13600834.2011.578925
David Erdos, "Stuck in the Thicket? Social Research under the First Data Protection Principle," International Journal of Law and Information Technology 19, No. 2 (2011), doi:10.1093/ijlit/ear001.]

While going through the provisions of the act in detail, Erdos emphasizes two basic problems. The first is the extraordinary breadth of the act, which covers even public information.

A great deal of data may still be covered including any records (including audio recording and photography) where an individual can be clearly distinguished and also certain deidentified data where the controller still retains the means of re-identification in manual form (Common Services Agency v. Scottish Information Commissioner, 2008). The meaning of ‘relates to’ presents further difficulties. Traditionally, this term has been interpreted extremely broadly. Under the Data Protection Act 1984 (which used the same statutory language) the office of the Data Protection Registrar (now ICO) determined that it encompassed even very innocuous public domain information, such as author and book title or the information about individuals included in Who’s Who. (Systematically Handicapped?, 85)

The second basic problem is that rather than balancing the interests of individual subjects, research, and society at large, the act considers the interests of "data subjects" to be "paramount." (Stuck in the Thicket, 140)

Put these two elements together, and the act threatens to stifle legitimate critical research.

The obtaining of data is the lifeblood of social research. A great deal of such information is obtained indirectly whether from published material or a third party. Beyond this there may also be a need to obtain data directly from data subjects but using clearly covert or even deceptive methodologies. Such data may shed critical light on socially problematic practices which would otherwise remain hidden from view (and possible remedy). These include discriminatory attitudes on the grounds of sex, ethnicity or race, the activities and outlook of members of extremist organizations, and police practices which conflict with the rule of law. For example, "Simon Holdaway’s seminal covert study of the British police uncovered both “very negative and suspicious attitudes towards black youths” and also evidence of ‘verballing’, a practice where the arresting or interviewing officer invented oral admission or incrimination and attrib- uted it to a suspect. Even in the case of relatively ‘open’ interviews or questionnaires, research design may mandate the provision of less than fully candid information. However, authoritative interpreters of the Act such as Jay have specifically held that these requirements make any covert research “almost certainly” illegal.

He also offers the example of Nigel Fielding's 1981 work, The National Front. Fielding interviewed members of the National Front, read newspaper accounts of them, and examined court records, then published information about the criminal proceedings against them, using their real names. Such work, he warns, would be illegal under the current act.

Erdos does not offer a history of the European and British lawmaking, but it seems likely that the drafters of the act did not take into account the effect it would have on social, political, and historical research. By contrast, they did offer a "much less restrictive data processing regime for ‘journalism, literature and art.'" (Systematically Handicapped?, 93) Presumably, then, someone raised the problems the rules would pose for a free press.

Thus, the press enjoys--at least in some circles--greater recognition of its role in a free society than does scholarly research. If lawmakers can be convinced that scholarly researchers often performs functions similar to those performed by the best journalists, Erdos's arguments may prove compelling. But if they believe that newspapers are the backbone of democracy and scholarship a mere "shin bone," we can expect scholars to be cut off at the knees.