Why Data is a Cheat in Our Tug-of-War of Rights

On a national data of reflection, OMDDAC co-hosted a webinar with a fellow AHRC-funded Covid-19 observatory – The COVID Review Observatory (CVRO) based at the University of Birmingham. In the webinar Rachel Allsopp (OMMDAC Research Associate) and Prof Fiona de Londras (CVRO Principal Investigator) spoke on the initial findings of their respective projects. In doing so, the connection between data-driven approaches to decision making and the lack of discussion of human rights began to emerge.

The Tug-of-War of Rights during the Covid-19 Pandemic

It isn’t always possible for all of our human rights to be met at the same time. There will be situations where in order to address some rights we have to restrict the meeting of others. The Covid-19 pandemic is an apt example of such a situation. As we discussed in a previous blog post over the past 12 months we have waived some of our right to private life (article 8 of The Human Rights Act 1998) in order to address our right to life (article 2 of The Human Rights Act 1998). We can imagine this as a tug-of-war; a rope of “rights” held by two teams, ‘privacy’ on one side and ‘life’ on the other, with the amount of rope that is held either side of the central line in the mud or sand as an indicator of how much of one right must be waived in favour of meeting the other.

In this game of tug-of-war, the pulling of the rope is analogous to debate, with the team members on either side being advocates for ensuring one right is met over, or in spite of meeting, another. In the UK, such debates should take place in parliament as policy or legislative decisions are discussed and made, evidencing the key role that politicians play in ensuring our rights are protected. But according to Prof de Londras’ research, in parliament “we don’t see rights being put at the forefront of discussion, deliberation and debate even when there are very clear rights related issues” during the Covid-19 pandemic. Why did we not see a hard-fought wrestling of rights related issues at a time when so many of our freedoms were, and still are being restricted? The answer could be in one of the players: data.

Why Data is a Cheat

We cannot deny that data can be powerful. It can help us understand our current world and predict our future world in regard to the impact that meeting, restricting or waiving certain rights may have in the short and the long-term. If data were to play tug-of-war, a few hard yanks and most of the rope would be on their side of the centre line. The game is unfairly over before it has begun; there is no space for debate. In other words, data has a dominating presence to the degree that it is prioritised over the potentially equally valid contributions of others, such as rights related arguments. The danger here, as we have seen during the past year, to quote Fiona de Londras, is that we “conflate two modes of decision making that are not the same” and that there is a “substitution of rights related justification with a data driven justification in a way that has been taken to imply or suggest that if something is driven by data that it must be rights compliant”.

But data can also be unpredictable. We may assume that we can collect certain data that actually we can’t. These could be technological failings, poor measuring instruments or resistance from those that we want to collect data from. Conversely, we can collect an abundance of data but struggle to sift through it and find meaningful, useful information. In other words, we may want it to pull the rope in a certain direction, or at a certain time, with a certain force, but cannot be sure if data will comply. A teammate with such qualities (the potential to be powerful but we cannot be sure when or how) would be an ideal scapegoat if a team was accused of poor sportsmanship or cheating. As Rachel Allsopp reported, in our initial OMDDAC findings it is evident that some believe people such as politicians are hiding behind data when making decisions. If the repercussions of such decisions are not what was intended they turn and point to data accusingly – “It’s the data’s fault. There was something wrong with the data. We can’t control the data. It didn’t show us what we thought it would.”

It could be argued that the greatest risk of the way that data currently plays in the tug-of-war of rights is not in their immediate influence on an individual game, but across a tournament. Concerns in regard to our rights are not always limited to having them be met or violated in a particular situation, but the precedence that right related decisions in one situation has over future situations. If data is continually allowed to pull the rope in favour of one right over another there is the danger that it never returns to its original starting position and so one rights team will always have an advantage over their opposition. Later on, there is even a danger that teams stop turning up to play as our definitions of what is and is not an acceptable degree to which a right is being met permanently shifts. So, how can we include data in our tug-of-war of rights without letting it take over?

Strategies for Handicapping Data

Inspired by OMDDACs initial insights, we can suggest a couple of ways in which data could be handicapped so that the tug-of-war match can be extended and actually be given the opportunity for rights-related debate.

Time delay before data is allowed to join the game. It is possible to have rights-related debate without including data. Indeed, this could happen in any instance where relevant data is not available. Data not being present allows the focus to shift to the contributions that rights-related debate can make to decision making. Of course, it is difficult to ignore data when we know it is there, and equally it would be unethical to not take into consideration all the information and expertise available when making decisions that will impact on people’s lives. So, let’s put a time delay on data and only allow it to play once rights-related debate has got the tug-of-war match well and truly underway.

Focus on data’s limitations, not its potential. As was explained above, data is not always useful or powerful. It has limits and these limits change depending on a multitude of aspects. But all too often we take the perspective that data is a panacea, and our discussions go from there. Instead, can we handicap data by starting from a different place, one which gives us a more critical or even cynical perspective? Emphasising that data itself will not be the answer to all our questions or problems allows space for rights-related debate to consider whether the waiving of one right in an attempt to meet another is proportionate. Effectively, data is pulling at the rope with one hand tied behind its back.

To conclude these suggestions are, of course, conceptual and how they can be practically applied to real-life scenarios needs further consideration. However, considering the catalyst that Covid-19 has been to data’s dominance, our concluding point is simple – data should not be allowed to steam roller over rights-related debates and should be cut down to size.