Data trusts have been conceived as a mechanism to enable the sharing of data across entities where other formats, such as open data or commercial agreements, are not appropriate, and make data sharing both easier and more scalable. By our definition, a data trust is a legal, technical, and organizational structure for enabling the sharing of data for a variety of purposes. The concept of the “data trust” requires further disambiguation from other facilitating structures such as data collaboratives. Irrespective of the terminology used, attempting to create trust in order to facilitate data sharing, and create benefit to individuals, groups of individuals, or society at large, requires at a minimum a process-based mechanism, that is, a workflow that should have a trustworthiness-by-design approach at its core. Data protection by design should be a key component of such an approach.

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Recent coverage in the press regarding large-scale passive pervasive network monitoring by various state and government agencies has increased interest in both the legal and technical issues surrounding such operations. The monitoring may take the form of which systems (and thus potentially which people) are communicating with which other systems, commonly referred to as the metadata for a communication, or it may go further and look into the content of the traffic being exchanged over the network. In particular the monitoring may rely upon the implementation of Deep Packet Inspection (DPI) technologies. These technologies are able to make anything that happens on a network visible and recordable. While in practice the sheer volume of traffic passing through a DPI system may make it impractical to record all network data, if the system systematically records certain types of traffic, or looks for specific patterns in all traffic, the privacy concerns are highly significant. The aim of this paper is twofold: first, to show that despite the increasing public awareness in relation to the capabilities of Internet service providers (ISPs), a cross-field and comparative examination shows that DPI technologies are in fact progressively gaining legal legitimacy; second to stress the need to rethink the relationship between data protection law and the right to private life as enshrined in Article 8 of the European Convention on human rights and Article 7 of the European Charter of fundamental rights in order to adequately confine DPI practices. As a result, it will also appear that the principle of technical neutrality underlying ISP's liability exemptions is misleading.

Transparency is a key principle of EU data protection law and the obligation to inform is key to ensuring transparency. The purpose of this obligation is to provide data subjects with information that allows them to assess the compliance and trustworthiness of the data controller. Despite the benefits of categorising personal data for this purpose, a coherent and consistent approach to doing so under the obligation to inform has not emerged. It is unclear what a 'category' of personal data is and when this information must be provided. This results in reduced transparency for data subjects and uncertainty for data controllers regarding their legal obligations, defeating the purpose of this obligation. This article highlights these issues and calls for clarification on them. It also posits that in clarifying the law, a new approach to categorising personal data is required, to achieve the benefits of categorisation and increase the transparency of personal data processing for data subjects.

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