G20 Japan Digital
G20 Japan Digital    Data
English /

Tatsuhiko Yamamoto

Who does the data belong to?
The individual? Or the collective?
Tatsuhiko Yamamoto
Professor, Keio University Law School


There are two worlds in data.
Data that specifies an individual and one that does not.
It's vital that we distinguish the two in our data discussion.
Professor Yamamoto, what is your view on the concept, “Data Free Flow with Trust?”
As a constitutional scholar, I have always maintained a position that we need both privacy protection and free usage of data to coexist in a balance. My understanding is that the idea of “data free flow with trust” basically is also based on understanding the issue of striking the right balance. I agree completely with the message that we need to think about the right balance.
One of the reasons why debate about data tends to become difficult is the fact that the definition of data is not necessarily consistent.
Precisely. When we say ‘data,’ there is, in fact, two different types of context. We often hear how “we need more data to drive the AI society.” This data is void of any personal information and is merely for AI to learn and digest. We can call this “asset data” and the world of such asset data is what I call the “collective world.” If we get technical, it is a “world that doesn't specify an individual.” In this world, this non-identifying data is something everyone can actively leverage as our collective asset or resource.
I see. What's the other type?
The other type of data is the world of “personal information” which specifies an individual. I call this the “individual world.” When we talk about how to handle data, I believe it's essential to distinguish these two because the principle of handling data in the collective and the individual worlds are fundamentally different. In the individual world, the priority is placed on the wish of the individual where s/he has the right to decide how to use the data which is the principle of personal relevancy. On the other hand, we have the collective world where data is freely used without the need of an individual consent. In the collective world, non-identifying data, in principle, is “processed=laundered” so that the individual cannot be specified.
Tatsuhiko Yamamoto
In what you call the “collective world,” how specifically are data circulated?
If I take an example from Japan with medical information, in 2018, a law called the “Next Generation Medical Infrastructure Act” was enacted. This is a law that deals with exchange of data from the “collective world” where data is stripped of any personal information. A business accredited by the government launders various patient data gathered from hospitals to make them anonymous and circulates them back to research agencies, pharmaceutical companies, government agencies, and other businesses.
In other words, personal data will continuously accumulate at such data processing businesses?
There are two important points in this law. Under the old legal system, it was difficult for hospitals to provide sensitive patient data to a third party without the patient's consent. But this prohibits the free flow of data and there was a need to take the data outside. This law allowed such data to be freely transferred. This is the first point.
I see.
The second point was to introduce an extremely strict measure on the businesses who collect and launder the data to safeguard the data management process. The law states that even with the patient's consent, medical information which has yet to be laundered cannot be provided to a third party. Because such businesses are handling a rather public task, the process of issuing accreditation is extremely severe where numerous ministers in charge deliberate with the Personal Information Protection Commission(PPC). The law aims to guarantee the “trust” in the free flow of data. However, one major issue remains with medical information which is how to deal with genome data. As genome data is inherently personal identification information, we may need a separate system for the ‘free flow’ of genome data.
”Data Free Flow” and “Data Portability” are elevating the speed of physical mobility.
The way data from the “collective world” and the “individual world” are leveraged will obviously be different, yes?
The data in the collective world is basically anonymous so it won't benefit an individual. When we look at medical data from the collective world, it is the society that will reap the benefit mainly through progress in public hygiene, medicine, and pharmacology. On the other hand, data from the individual world will be used for the purpose of the individual to become healthy or to receive detailed examination and prescription drug. But the two cannot be completely separated. Combining the data from both worlds may allow for a more advanced medical service. Medical data also is related to the insurance system so from an administrative standpoint, it is difficult to keep them completely separate.
What do you mean by that?
If we hold that maintaining a healthy population is important to keep social security cost from increasing unnecessarily, it would be in the interest of the government to monitor the health of its citizens. If we take a sci-fi-like concept, it is technically possible to calculate the insurance cost a citizen is due based on their health score using such data. It will be a system that incentivizes people to maintain their health to keep the insurance cost down.
Is it like people providing their own data for social welfare?
Yes. Of course, it would be wonderful if no one got sick and remained healthy but if we naively allow this system to play out, people's lives will be constantly monitored to be optimized to achieve a “good life” as defined by the government or a company. Some people may be fine with that, but it contradicts the freedom to “design your own life as you see fit” or the concept of “individual rights.” It's a difficult question, whether to prioritize personal freedom or the benefit of the society.
Tatsuhiko Yamamoto
Such problem lies precisely in the concept of digital ID.
We have a similar debate when we discuss the idea of providing “digital ID” to the entire population. Those who oppose fear the surveillance society and those who are for the idea speak about the benefit of the society. But even in the pro-digital ID camp in Japan, there are some who argue their case from a different perspective which is by identifying and managing the population by individuals, it frees them from the current family register system. It liberates them from the family system which was the basis for this family register framework where individuals are allowed a higher level of mobility.
Freedom of mobility?
Yes. This ties into the theme of “regional,” “medicine,” or “workplace” but if a communication infrastructure is in place, the individual owns communication devices, and data portability is approved, you can work anywhere you choose and receive the necessary services. I think “freedom of mobility” is an important topic for discussion when we think about the data society. Before modern times, people were tied down to the land or the property but in modern society, “freedom of abode and mobility” has become our right. The Japanese Constitution also guarantees such freedom of mobility(Article 22 Clause 1). “Data Free Flow” and “Data Portability” may potentially expedite the physical mobility of people.
When we think about the data economy of the future, it's important to see “corporate benefit” and “privacy/consumer protection” to not be contradictory but complementary concepts.
In such context, what are the specific measures and systems required for safe and reliable data usage?
Personal Data Protection Law prohibits the act of identifying an individual from an anonymous “collective data” but the punishment is not so severe. Going forward, how to define this “act of identifying” is going to be a significant issue. Also, in terms of data from the “individual world,” it is almost impossible for an individual to grasp and manage all data related to oneself so there needs to be a different approach from “personal information control” where one gives consent to each and every piece of information.
What kind of approach will this be?
I think one trend we will see is to delegate the management and operation of personal data to someone they can trust. It's where one entrusts one's information to a reliable agency and control the agency in how the it manages/operates one's data. It's a structure where there is a mediator between the agent and the user of the information who individually builds this trusting relationship. What's known as “information banks” are based on such concept.
Tatsuhiko Yamamoto
That ‘agency’ must be very trustworthy or there's trouble, yes?
Exactly. Such agency will have a grave responsibility, but it is also important that they are independent of the government as it is important that agencies such as information banks compete to proactively improve their technology and services. I believe that the argument that sees “corporate interest” and “privacy/consumer protection” to be not conflicting nor contradictory but complementary is important when we think about the future of data economy and data society.
* Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of G20 Ministerial Meeting on Trade and Digital Economy.
Tatsuhiko Yamamoto
Professor, Keio University Law School
Professor of Keio University Law School. Deputy Director of Keio Global Research Institute(KGRI). Member of the MIC “AI Governance Committee”, METI/JFTC/MIC “Digital Platformer Trade Infrastructure Committee,” and MIC “Accreditation Scheme for Information Agency Committee.” Authored “The Future of the Constitutional Law,” “Thoughts on Privacy Rights,” “Scary Big Data,” “AI and the Constitution,” etc.


What are the possibilities and challenges of utilizing data? Let's ask experts.