Information Technology and Legal Informatics. To what extent are big data technologies friends or foes in the struggle to stop climate change? Legal outlook

Key points:

Big data analysis is used to make sense of the abundance of information to coin it into new business solutions or innovation.^{^[1]} In the times when data becomes currency, it is more appealing to learn about the effects of big data and big data analytics on the phenomenon that increasingly dominates the public debate around the world – climate change.
In the EU, there is no legislation that would regulate big data generally.^{^[2]} Selected aspects of what big data illuminates in practice are controlled in different acts that deal with areas which might be influenced by big data.
To facilitate appropriate change the European regulators ought to create a piece of legislation be it a regulation or directive,^{^[3]} which prescribes who can generate, analyse and store big data, evaluating purposes which may assist in mitigating climate change. This report only highlights the main points that such legislation could include.

Introduction

‘Big data’ is difficult to define, taking that it describes both a type of data, facts and statistics, and how it is handled. Most commonly, it is a term that describes massive data sets with varied and complex structures, which are stored to be processed and to create new results, in different combinations, for different problem matters. The research into (new) patterns of big data is called big data analytics.^[4]Big data analysis is used to make sense of the abundance of information to coin it into new business solutions or innovation.^[5] In the times when data becomes currency, it is more appealing to learn about the effects of big data and big data analytics on the phenomenon that increasingly dominates the public debate around the world – climate change. It is not far-fetched to make the connection, considering that big data analysis is used to make decisions on surveillance or public policy and order.^[6] In February 2014, the Minister of Universities and Science in the UK announced a new investment of £73 million in big data, which was to be spent on data research into i.a. the use of environmental data.^[7]

Yet, keeping in mind the precautionary principle, particularly important in the EU law framework, one must ask the question ‘To what extent are big data technologies friends or foes in the struggle to stop climate change?’. And paramountly – do the existing laws ensure that, independently of the trends, big data does not become a contributor to the destruction of the natural environment? This report will attempt to provide a succinct answer by analysing the relationship between big data and efforts to mitigate climate change, as well as existing and upcoming legislative initiatives to regulate the creation and use of big data.

The report will be drafted considering the legal framework of the EU. It is to provide sufficient focus but also to highlight that the issues surrounding Big Data are, inherently, of international scope,^{^[8]} especially if it is considered together with the efforts to halt climate change.

Big data and natural environment

Contemporarily, the big data analyses can confirm and estimate the Antarctic ice sheet’s changing volume, flow and gravitational attraction, to model its surface mass balance.^[9] Similar benefits have the data analyses of sea surface temperatures and interannual changes in fire activity, as conducted, for example, by Chen et al.^[10] A more surprising application, relying on similar data analysis, is automated vessel tracking and monitoring system, which can be used to enrich models with data that allows for predicting illegal fishing activities in real-time,^[11] acting in favour of biodiversity, which is often undermined in discussions on preventing climate change. Big data sets are also created on air pollution, with the help of sensors. This data can help create visualisations of where air quality is worsened due to different geographical and other factors and this can aid in studying the phenomenon and finding improvements.^[12] Some advanced systems can even automatically regulate building systems to optimise different features of the structure – for example, the energy usage and faults in the installed equipment. This can also be applied to collect data on a buildings’ water and energy use, allowing the public suppliers, but also individuals or businesses, to amend the resource consumption.^[13] What could be overlooked is that big data analysis may focus on actions of the private sector,^{^[14]} illustrating trends and pointing at behaviours that could be awarded, if they comply with goals set by the legislator and the executive power – which might aid verification of information for certification purposes.^{^[15]}

On the other hand, the storage and analysis of big data requires large amounts of resources, which are not thought of right away. Digital technologies are, all in all, reliant on non-digital frameworks, masts, energy-generating technologies, which pollute the environment. Such a relationship is the more harmful as there is no circulation of energy within the same circle but rather, the cycle is broken at the very get-go. One of the first concerns is the energy storage which with large quantities of data poses significant challenges. For example, in Iceland, a country selected by many data giants for storage of their information due to the beneficial weather conditions (physical data servers generate massive amounts of heat and because of that require appropriate and continuous cooling), according to the National Energy Authority, energy demands have been doubling from one year to another.^[16] One must remark that for a country such as Iceland, with significant renewable energy production potency, such usage is not detrimental, yet it would be in other parts of the world. The required energy production might not level with the capacity of the domestic renewable energy producers and lead to the increased production reliant on coal and other air-polluting sources. A 2015 report found that data storage centres located around the world were responsible for about 2 percent of global greenhouse gas emissions – just as much as the aviation industry. What is more, one must count in the production, use and then disposal of batteries, harmful to the ozone coolants, and the potential fire risks in the event of malfunction.^{^[17]} These constitute a threat to the protection of the natural environment.

Existing legislation

In the EU, there is no legislation that would regulate big data generally.^[18] Selected aspects of what big data illuminates in practice are controlled in different acts that deal with areas which might be influenced by big data.

A relevant example is the General Data Protection Regulation (GDPR),^[19] which, notably, stands in opposition to what the goals behind big data analysis typically are. For instance, extensive use of data for all known and future use is limited by the purpose limitation codified in art. 5 of the GDPR. The convenient re-use of personal data for all possible purposes, to run big data analysis smoothly, is limited by the requirements for transparency, included in Art. 12-14 GDPR. Even though personal data might not come to mind when discussing climate change, one ought to note that the ability to track, for example, location of individuals could provide interesting insights for researchers, and, notably, this category of data falls under the scope of GDPR.^[20] A justification under the name of ‘higher goals’, that is, acting in the name of public good, would have to balanced against private interests and is not certain to be considered sufficient.

In selected situations, the Network Information Security Directive^[21] may be applicable as well. The legal act imposes security obligations on providers of essential and digital services. Service providers that rely on big data may fall within the scope of the NIS Directive. The document imposes security obligations, yet to what extent they must be respected depends on the national implementation of the act. Nonetheless, universally, for example, service providers have breach notification duties.^[22]

Aspect of the use of big data may be relevant under the Database Directive^[23] or the Trade Secrets Directive^[24], since big data may be treated as any other property. Similarly, the Digital Market Directive^[25] regulates data mining, which may apply to big data as well. These are, understandably, less relevant for the wider picture and may come into play in isolated cases.

Upcoming legislation

Proposal for a regulation on European data governance, Data Governance Act, was presented by the European Commission at the end of 2020 and is under development presently.^[26] As reported, with the bill, permitting access to data in business-to-business (B2B) relationships, and, mostly, the re-use of data, in particular of public sector data and the sharing of personal and non-personal data will be permitted. This is to define the rules for trading data.^[27]

This regulation is, of key relevance for this report, a part of the EU’s efforts to provide the individuals of the Community with certainty of protection against leakage and unwanted use of their personal data (next to the existing legislation). It has been openly acknowledged that this certainty is of essence to enable expansion of sustainable data services.^[28] By sustainable data services one may understand both services which permit the collection and analysis of data which permits adopting changes to the environmental status quo within the Union, in a publicly accepted manner, but also as services which in themselves do not wither the state of the natural environment, by, for example, having minimal or remote carbon footprint.

Evaluation of the existing and upcoming legislation

It has been acknowledged that the majority of nations are not taking advantage of the availability of big data on the environment. Many actors find it difficult to make use of the provided input and the offered solution to the problem is the removal of barriers to analysing big data and accessing products derived thereof.^[29] This, as much as may promote the increased use of big data, is also threatening to the existing standards of privacy – the more actors are involved, with varying legislative background or support at hand, the higher chances of a data breach happening.

Privacy is a key matter to consider when big data analysis is scrutinised – this is of concern to all areas that could benefit from the use of big data. The EU has already put in place significant effort to investigate the environment in which regulations on the use of big data are embedded, in particular for healthcare. The personal data related to health is sensitive, yet EU citizens are happy to share it, as they perceive it vital for advancing health research.^[30] Numbers relevant for environmental protection efforts typically pose fewer dangers to personal privacy; nonetheless, the concerns raised by data protection law specialists are not to be dismissed. Increased education on the use and application of the data, accompanied by complex data security measures, renders key to facilitate the exchange and sharing of data for environmental, scientific purposes.

Missing legislation

A piece of legislation that the EU’s framework misses is one that would regulate the specific use of environmental big data. This is especially relevant to make big data a friend to environmental protection efforts, not a foe.

The use of the data should be somewhat regulated top-down, to ensure that data is not generated and stored, using the valuable resources, for the mere sake of storage and potential use. This is naturally the most challenging aspect of any big data related action, since big data, at a core, relies on the availability of the abundance of information which can be freely cross-examined to come up with new outcomes. What can be proposed, however, is codified pre-selection – what sort of information may, and which may not, be freely utilised. The above-described usages rely on certain and prescribed types of information. Certainly, the free use and analysis could lead to finding novel techniques or points of focus; this, however, must be evaluated – whether the possibility of benefit can outweigh the potential damage. Here, one must keep in mind the precautionary principle which is embedded in one of the core documents of the Community – the Treaty on the Functioning of the European Union^[31], in Article 191 to be exact. It imposes a higher level of environmental protection through preventative decision-taking in the case of risk. According to the European Commission, the principle may be invoked when a ‘phenomenon, product or process may have a dangerous effect, identified by a scientific and objective evaluation’.^[32] As suggested, the data should be collected for concrete purposes and cross analysed, be it by software or humans, only when there is a sufficiently convincing indication the result could bring concrete benefits – in the light of the excessive needs for energy and other harmful side factors. This tightens the restrictions put on the use of data sets, as in the Digital Market Directive^[33] for example, and, in more general terms, expands the scope of some limitation which has already been laid out in legislation.

To ensure control over how the data is utilised, the introduction of licensing and auditing systems is advised, as well as the introduction of the possibility of recourse to fees or other punitive means to deter from big data compilations and analysis of non-essential actors. The conditions for licence-granting could be based on the evaluation of the output a body could provide, also for the private users, for example, in the case of a public energy provider.

Conclusion

From the above, one can gather that the answer to the question whether big data is a ‘friend’ or a ‘foe’ to the environmental efforts is not a straightforward one. As such the technology at its core is rather unsustainable, if developed to the extent one would want to see it advance – on a massive scale, allowing for continuous tracking and calculation of new results. These can also aid in finding ways to prevent or to limit the damage done to the Earth’s climate. Whether the benefit outweighs the damage is not necessary to be answered if one focuses on seeking ways to ensure that the energy produced to run big data analysis comes from renewable energy sources and that other elements used for the technology are developed to be more sustainable; for example – server batteries could be recyclable or used for the production of other appliances. Renewable energy sources are not easily obtainable and usable in all places of the world, and since the energy demands for big data are significant, the utilisation of the technology should be limited when unnecessary. This matches the precautionary attitudes of the EU towards environmental dangers.

To facilitate appropriate change the European regulators ought to create a piece of legislation be it a regulation or directive,^{^[34]} which prescribes who can generate, analyse and store big data, evaluating purposes which may assist in mitigating climate change. This report only highlights the main points that such legislation could include.

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^[1] K Taylor-Sakyi, ‘Big Data: Understanding Big Data’ (2016) Cornell University <https://arxiv.org/pdf/1601.04602.pdf> accessed 14 December 2021; P V Coveney, E R Dougherty and R R Highfield, ‘Big data need big theory too’ (2016) The Royal Society Publishing <https://royalsocietypublishing.org/doi/full/10.1098/rsta.2016.0153> accessed 14 December 2021.

^[2] Which is not an unusual oversight, taking that, e.g. in the United States, a big market for Big Data driven data, there is also no regulation for Big Data specifically – to date (February 2022).

^[3] Which is appropriate being a question requiring separate analysis.

^[4] S Sagiroglu and D Sinanc, ‘Big data: A review’ (2013) International Conference on Collaboration Technologies and Systems (CTS) 42.

^[5] K Taylor-Sakyi, ‘Big Data: Understanding Big Data’ (2016) Cornell University <https://arxiv.org/pdf/1601.04602.pdf> accessed 14 December 2021; P V Coveney, E R Dougherty and R R Highfield, ‘Big data need big theory too’ (2016) The Royal Society Publishing <https://royalsocietypublishing.org/doi/full/10.1098/rsta.2016.0153> accessed 14 December 2021.

^[6] Z Tufekci, ‘Engineering the public: Big data, surveillance and computational politics’ (2014) 19(7) First Monday <https://journals.uic.edu/ojs/index.php/fm/article/view/4901/4097> accessed 14 December 2021; M Salathé, L C Madoff and J S Brownstein, ‘Ethical Challenges of Big Data in Public Health’ (2015) Plos Computational Technology <https://journals.plos.org/ploscompbiol/article?id=10.1371/journal.pcbi.1003904> accessed 14 December 2021.

^[7] B van der Sloot and S van Schendel, ‘Ten Questions for Future Regulation of Big Data: A Comparative and Empirical Legal Study’ (2016) JIPITEC 110 para 1, 116.

^[8] B van der Sloot and S van Schendel, ‘Ten Questions for Future Regulation of Big Data: A Comparative and Empirical Legal Study’ (2016) JIPITEC 110 para 1, 116.

^[9] R K Runting, S Phinn, Z Xie, O Venter and J E M Watson, ‘Opportunities for big data in conservation and sustainability’ (2020) Nature Communications <https://www.nature.com/articles/s41467-020-15870-0> accessed 14 December 2021.

^[10] Y Chen et al. ‘Forecasting fire season severity in South America using sea surface temperature anomalies’ (2011) Science 334, 789.

^[11] R K Runting, S Phinn, Z Xie, O Venter and J E M Watson, ‘Opportunities for big data in conservation and sustainability’ (2020) Nature Communications <https://www.nature.com/articles/s41467-020-15870-0> accessed 14 December 2021.

^[12] J Tsui, ‘Using Big Data Technology for Environmental Protection’ (Environmental Protection, 25 March 2020) <https://eponline.com/articles/2020/03/25/using-big-data-technology-for-environmental-protection.aspx> accessed 24 December 2021.

^[13] J Tsui, ‘Using Big Data Technology for Environmental Protection’ (Environmental Protection, 25 March 2020) <https://eponline.com/articles/2020/03/25/using-big-data-technology-for-environmental-protection.aspx> accessed 24 December 2021.

^[14] R K Runting, S Phinn, Z Xie, O Venter and J E M Watson, ‘Opportunities for big data in conservation and sustainability’ (2020) Nature Communications <https://www.nature.com/articles/s41467-020-15870-0> accessed 14 December 2021.

^[15] R K Runting, S Phinn, Z Xie, O Venter and J E M Watson, ‘Opportunities for big data in conservation and sustainability’ (2020) Nature Communications <https://www.nature.com/articles/s41467-020-15870-0> accessed 14 December 2021.

^[16] A Dellinger, ‘The environmental impact of data storage is more than you think – and it’s only getting worse’ (Mic, 19 June 2019) <https://www.mic.com/impact/the-environmental-impact-of-data-storage-is-more-than-you-think-its-only-getting-worse-18017662> accessed 26 December 2021.

^[17] A Dellinger, ‘The environmental impact of data storage is more than you think – and it’s only getting worse’ (Mic, 19 June 2019) <https://www.mic.com/impact/the-environmental-impact-of-data-storage-is-more-than-you-think-its-only-getting-worse-18017662> accessed 26 December 2021.

^[18] Which is not an unusual oversight, taking that, e.g. in the United States, a big market for Big Data driven data, there is also no regulation for Big Data specifically – to date (February 2022).

^[19] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] L 119/1.

^[20] Article 4, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] L 119/1.

^[21] Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union [2016] L 194/1.

^[22] Article 14 of the Directive.

^[23] Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases [1996] L 77/20.

^[24] Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure [2016] L 157/1.

^[25] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC [2019] L 130/92.

^[26] February 2022.

^[27] A Linck, ‘Data Governance Act: DIGITAL SME welcomes Commission’s proposal to strengthen data sharing in the EU’ (European Digital SME Alliance, 23 April 2021) <https://www.digitalsme.eu/data-governance-act/> accessed 14 December 2021.

^[28] ‘The EU Data Protection Reform and Big Data’ (2016) European Commission 2.

^[29] R K Runting, S Phinn, Z Xie, O Venter and J E M Watson, ‘Opportunities for big data in conservation and sustainability’ (2020) Nature Communications <https://www.nature.com/articles/s41467-020-15870-0> accessed 22 December 2021.

^[30] European Patients’ Forum, Big Data and Artificial Intelligence (EU Policy Briefing for Patient Organisations, April 2020) 13.

^[31] Consolidated version of the Treaty on the Functioning of the European Union.

^[32] ‘The precautionary principle’ (Eur-Lex) <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al32042> accessed 14 December 2022.

^[33] In Articles 3 and 4.

^[34] Which is appropriate being a question requiring separate analysis.