“Hotel California Conundrum” – Data and the UK Vote

The UK voters marching to the polls for the most momentous democratic decision the country has ever made they will decide not only the nation’s immigration policies but also its future in the information age.

It’s a topic that has seen virtually no coverage in the campaign for Brexit but one that will have profound implications for the UK according to both the Leave and Remain campaigns.

Leave maintain that the UK will have the option to forge a bright new IT future unencumbered by the dinosaur speed decision making of the EU bureaucrats. Leaving say Leave experts will let the UK make its own decisions in tune with the speed needed for the IT world. It will also allow the UK to create a new nimble model for data use that will be the envy of the world. A data haven on the side of Europe that will be the envy of the super state.

According to Conservative MP Adam Afriyie, an internet entrepreneur and Leave campaigner: “Brexit would be very liberating. If there’s one thing about the digital economy, having spent 20 years in IT before getting into politics, it is that things move very, very quickly and were we to be outside the EU we would actually be in a great position because we would be able to choose whether or not we allow our data standards to match those of the EU, or whether we choose to allow them to match what the Americans, or the South Americans or the Australians or the Far East want.”

If the UK is outside of the EU Afriyie claims it can become a powerhouse in Fintech, digital and finance which he says are already UK strengths and lead the world in innovation free of EU restraints.

A view that has been dismissed by Remain campaigner and EU London MEP Mary Honeyball who co-ordinates the EU Parliament’s Culture and Education Committee as “cloud cuckoo land”.

“I just feel that we are not isolated we have to exist in a global world and we have to do business at all levels with the EU so we will have to carry out the data protection regulations because the EU will insist on that and we have EU citizens living in the UK whose privacy will have to be respected under the General Data Protection Regulations and we will have to comply with what the EU wants if we are to continue to do business with Europe.”

You can check out any time you want but you can never leave.

Honeyball’s point “continue to do business with Europe” is at the heart of the debate between the two sides according to her, not being in the EU will restrict the UK’s access to the digital single market which she claims is worth €415 bn a year. Afriyie and Leave dispute that, the EU digital market they claim is a grandiose project that has not yet been realised so it does not have the value claimed for it and as and when it does become a reality a footloose UK can quickly adopt the legislation necessary to adopt it while striking deals with the US, China, Japan, India and other countries.

Critics of the Leave position have been quick to seize upon the fact that its view of a new world is also just as unformed as that of the digital single market and that one of the current attractions of London to US high-tech firms is being in an EU data zone, speaking English and understanding EU laws. They also point out that the soon to be implemented EU rules on data protection, e-privacy and network security have even been favourably received in the rest of the world.

Daniel Castro, vice president of the Washington-based technology think tank, the Information Technology Foundation thinks like Afriyie that innovative UK tech companies could create a data use model that would be the envy of the world but in the short term he thinks Brexit will hinder the UK.

“So much of the value comes from the ability to share and mix data from different sources to the extent that being outside will limit the ability of companies in the UK to pull in data sets that they were using before and that can hurt them in the short run. It’s just if they have a great analytics system but are they still able to pull in the different data sets that they were using that’s going to be one of the key questions for any company that has a heavy export, customer or supplier base with the EU.”

And Castro was among the 11 out of 12 experts in the technology and legal sectors contacted for this article who stated that it was inevitable whatever the result of the referendum that the UK would have to implement the GDPR and many other EU measures on data – a situation called the Hotel California Conundrum by the website Future Intelligence after the Eagles’ pop group lyric “you can check out any time you want but you can never leave”.

Ironically, the UK will be legally obliged to have introduced the GDPR for a month until it can leave in June 2018, throwing out the legislation at that point will probably be pointless.

Indeed, being outside of the EU for the UK could make it a data pariah rather than an attractive data haven according to Toni Vitale, an expert on the GDPR for the lawyers Addleshaw Goddard being outside the EU and not adhering to the GDPR will mean that the UK will be in a hermetically sealed bubble, unable to extract big data value from mixing the UK’s data with its near and similar neighbours on the continent.

A position that could even get worse as the UK Government’s determination to introduce the controversial Data Regulation and Investigatory Powers Act dubbed the ‘Snooper’s Charter’ by opponents, that allows the UK listening agency GCHQ to eavesdrop on data traffic in the UK’s interest is even considered more intrusive than similar measures in the US will mean that the UK will not meet the ‘adequacy’ requirements demanded by the EU that no EU citizen’s data is under bulk surveillance.

“The position that we find ourselves in with Dripa is that whilst the GDPR might be adequate as far as the EU is concerned we may not have that same adequacy as far as the UK is concerned and we may end up in situation where a regime that is put in place for privacy purpose could be potentially struck down under Dripa,” said Mark Deem, a lawyer working for the US legal giant Cooley, specialists in technology which names Google among its clients and which set up its London practice to take advantage of the UK’s access to the Euro data zone.

All to play for and the only certainty according to the experts is uncertainty but as Michael Gove the Tory cabinet minister, former journalist and leading Leave campaigner stated – “I think we have had enough of experts,” for once he was right the only expert now is the person with the ballot in their hands.