Datafication, Power, and Publics in India's National Digital Health Ecosystem

While evident for a long time, the COVID-19 pandemic starkly illustrated the need to strengthen India’s public healthcare system. But since 2017, the solution to India’s public health woes takes the shape of the National Digital Health Ecosystem (NDHE) – a digital system for the generation, use, and ‘frictionless’ circulation of health data across healthcare actors through the use of artefacts such as health IDs, electronic health records, data standards, and federated computing architectures. These artefacts are not neutral technological systems. Rather, together with social practices, they constitute a “data infrastructure”. Seeing the NDHE as a data infrastructure allows us to visibilise the regulatory effects of the NDHE, i.e., the ways in which the NDHE creates “communities of the affected” whose access to public health is now mediated by affordances granted by the NDHE. This, in turn, shapes law and regulation of the NDHE, where legal frameworks for (health) data protection are not weakened by accident, but weakened by design. At the same time, the regulatory effects of the NDHE can and should be regulated by law, by channeling law’s commitment to the creation of healthy public spheres to ensure the vitality of a democracy. Accordingly, this paper makes three contributions – one, it provides a brief overview of the political economy and the regulatory effects of the NDHE; two, it analyses the ways in which the regulatory effects of the NDHE shape legal frameworks for health data to disempower individuals and communities who are the generators of this data; and three, it outlines research and policy suggestions for how the law can intervene in limiting the exclusionary data-politics of the NDHE.

This paper originated in the seminar Global Data Law II: Ordering and Power. It will be published by the National Law School of India University’s Socio-Legal Review, Vol 20, Issue 1 (2024).

Human Rights in a Use Case World

Digital engineers diagram ‘use cases’ to design software, based on practical needs of the quotidian product user rather than big normative claims. Human rights lawyers work in the reverse direction, starting from principles of universal application then applying these to hard cases. These two modes of thinking and practice have existed separately. Digital automation of government services using algorithms and AI is bringing them abruptly together and into mutual learning. The chapter examines controversies and court decisions over digital welfare state programmes in Australia (Robodebt), the Netherlands (Syri), and the United Kingdom (Universal Credit), highlighted by Philip Alston as UN Special Rapporteur. The normative practice of human rights must grapple with data concentration and computerized decisions wherever power is exercised. The chapter proposes ‘thinking infrastructurally’ as a path to bring human rights thinking into the fast-escaping public–private practices of algorithmic government and machine learning.

This paper has been published in The Struggle for Human Rights: Essays in honour of Philip Alston (Nehal Bhuta, Florian Hoffmann, Sarah Knuckey, Frédéric Mégret, and Margaret Satterthwaite eds., Oxford University Press 2021).

Milling the F/LOSS: Export Controls, Free and Open Source Software, and the Regulatory Future of the Internet

This Note investigates U.S. export controls as they relate to free and open source software (FOSS), arguing that the U.S. government has responded to the challenges of modern software by attempting to force an ill-fitting framework to accommodate FOSS. A contemporary reexamination of the state of export controls over FOSS can help in mapping out the responses generated by national security interests to the challenges of the internet. In particular, the Note offers a detailed account of the ways in which federal export controls have excluded FOSS from their regulatory purview through a powerful public availability exemption. In doing so, regulators have essentially labeled publicly available software as unthreatening to national security, regardless of the potential uses of any particular code.

This paper has been published by the NYU Journal of Legislation & Public Policy, Vol 23, Issue 3 (2021). It originated in the Guarini Colloquium: Regulating Global Digital Corporations and also contributed to the Open Source Software as Digital Infrastructure project.

The Global “Last Mile” Solution: High-Altitude Broadband Infrastructure

This paper explains the reasons for communications infrastructure underdevelopment historically, taking into account the myriad ways governments, usually through national universal service mechanisms, have attempted to correct the underprovision and positing why this opportunity to create global broadband infrastructure has surfaced. In essence, this portion of the paper explains the last mile problem that innovative infrastructure projects purport to solve. It then describes the broadband infrastructure projects, the consequences of multi-jurisdictional regulatory complexities for bringing the projects to market, and the disruptive potential of the infrastructure to change the economics of broadband access and provision. Lastly, it considers whether the companies are indeed solving the last mile problem beyond mere provision. Accordingly, the potential impacts of Internet access are surveyed using Amartya Sen’s capability approach, which seeks to place the individual and his or her freedom at the center of development.

The paper originated in what was then the IILJ Colloquium: “International Law of Google” and is now the Guarini Colloquium: Regulating Global Digital Corporations. It got published in the Georgetown Law Technology Review, Vol. 4 (2019), 47-123.