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Whose data is it anyway?

The digital capture of our public and private lives is occurring in complex and often hidden ways. But who decides how that information is used? And how do Māori exercise their right to retain sovereignty over their data?

Unplugging or opting out of digital data capture is hard, even for the tech savvy. Government agencies and corporates are increasingly able to identify and monitor individuals and groups without requiring active consent. Take, for example, the controversial 2018 Census that missed one third of Māori and Pacific peoples. Stats NZ was able to salvage the $120m-plus operation by finding missing individuals in other government records, including prisons, and adding them to the census dataset. Census participation is compulsory under the Statistics Act and the linked data were de-identified. Nevertheless, the 2018 census was dramatically different from the approach that generations of New Zealanders have come to know and trust.

In a data-driven world, even the humble toilet has become a treasure trove of information. As part of the NZ Police’s national wastewater drug-testing programme, ESR routinely tests community wastewater – untreated sewage – to detect levels of methamphetamine and other illicit drugs. According to the ESR website, the testing provides real-time intelligence about drug consumption in our towns and cities. By no means is this practice unique to Aotearoa. Wastewater-based epidemiology is a growing global field that has its origins in drug detection. In recent years it has evolved to include testing exposure to environment contaminants, pathogens and infectious diseases including Covid-19.

The examples given here – and these are just two of many – comply with legal settings and individual privacy requirements. But they highlight broader questions about the ethics of new technologies and data practices. Are these ways of collecting, sharing and analysing data ethical? Whose ethics and values prevail? And who gets to decide? These examples suggest that a rigid focus on individual data rights and protection is too narrow, and that a profoundly different approach and set of values is needed.

Māori have age-old systems and protocols around the protection and sharing of collective knowledge and are well positioned to reimagine tikanga for technology in a digital age. We also know only too well what it’s like to be the targets of data surveillance.

To that end, the claim that technology is part of the inevitable march of progress – that we need to get on board the waka or get left behind – has a familiar ring.

In Aotearoa, state institutions such as native schools, child “welfare” and the precursor to the statistics department were instrumental in furthering state goals of assimilation. Contemporary surveillance practices rely on expanded state powers through legislation (eg the Terrorism Suppression Act 2002) and the sharing of big and linked administrative datasets. Over-surveillance of Māori means that data about Māori individuals and whānau are more likely to be included in government datasets (eg forensic DNA databanks), particularly those capturing sub-populations in perceived need of intervention.

Given the greater risks and potential data-related harms that Māori face in the digital era, including stigmatisation and racism, what can be done to push back against what some have dubbed “data colonialism”? How might we begin to create systems of good data to improve the wellbeing of our whānau, communities and environments, while providing clear lines of accountability back to them?

One potential pathway lies in indigenous data sovereignty. At its heart indigenous data sovereignty is about ensuring that control over indigenous data – whether it relates to indigenous people, environs, knowledge systems or customs – is in indigenous hands.

The Māori Data Sovereignty network Te Mana Raraunga has developed data sovereignty principles for the ethical use of data in Aotearoa. Based on six Māori values – rangatiratanga, whakapapa, whanaungatanga, kotahitanga, manaakitanga and kaitiakitanga – the principles provide a frame for thinking through issues such as data control, jurisdiction, accountabilities, stewardship and consent. The emphasis on collective rights and reciprocity transcends the fixation on personal data protection, privacy and control in existing policy and regulatory approaches in Aotearoa and elsewhere (such as the European Union’s General Data Protection Regulation). A Māori data sovereignty approach to census data mitigation and community wastewater testing would put the affected groups in the centre of data governance and decision-making, rather than on the periphery.

Māori data sovereignty requires that both the physical and logical storage of Māori data is within the direct jurisdiction of Aotearoa. The increasing move by state agencies to offshore all data, including Māori data, is a major concern. Take, for example, Australia’s Assistance and Access Bill, passed in 2018. It undermines data sovereignty by compelling companies to hand over data stored in Australia, even if it is protected by end-to-end encryption. If companies do not have the ability to intercept encrypted information, they can be forced to build tools to do so. It soon becomes apparent that data sovereignty is not possible if these data stores are used. However, even storing the data in Aotearoa does not automatically make it safe. For example, under the US Clarifying Lawful Overseas Use of Data Act, or Cloud Act, it’s unclear who has legal jurisdiction over data in a storage facility owned by an overseas company.

Meaningful control over data systems and investment in community-controlled data infrastructure is also critical to support local expressions of mana motuhake. In the context of Covid-19, the exclusion of Māori from the design of data systems means that there are missed opportunities to collect, disaggregate and report data in ways that are most useful and relevant to iwi, hapū and Māori organisations. There are also missed opportunities for Māori knowledge and community intelligence to guide and inform pandemic planning and responses. Moreover, as fear and anxiety increase, and misinformation and conspiracy theories proliferate, concerns about data being used as a tool of social control are likely to be amplified.

Meaningful actions to build trust, transparency, inclusion and, to share authority with Māori as te Tiriti partners, are more crucial than ever.

Tahu Kukutai, Donna Cormack and Chris Cormack have contributed to the new BWB Text Shouting Zeros and Ones: Digital technology, ethics and policy in New Zealand.



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