=Paper=
{{Paper
|id=Vol-2323/SKI-Canada-2019-7-5-1
|storemode=property
|title=Pedestrian Curiosity: A Brief Examination of Consent and Privacy in Swath Section Smart City Spaces
|pdfUrl=https://ceur-ws.org/Vol-2323/SKI-Canada-2019-7-5-1.pdf
|volume=Vol-2323
|authors=Keri Grieman
}}
==Pedestrian Curiosity: A Brief Examination of Consent and Privacy in Swath Section Smart City Spaces==
https://ceur-ws.org/Vol-2323/SKI-Canada-2019-7-5-1.pdf
Spatial Knowledge and Information Canada, 2019, 7(5), 1
Pedestrian Curiosity: A Brief
Examination of Consent and Privacy in
Swath Section Smart City Spaces
KERI GRIEMAN
Canadian Internet Policy and
Public Interest Clinic
University of Ottawa
keri@cippic.ca
ABSTRACT
Consider a car-sharing service: a
Smart cities technologies raise concerns for management system must know where its
privacy, and our regulatory framework may cars are, whether they have been paid for,
raise more questions than answers in and how to manage user data. The cars will
addressing these concerns. In looking at be useless unless they are placed
how smart cities function, legal questions conveniently for customers to use them.
about data collection, jurisdiction over data Data is analyzed to determine where to
handling and public-private partnerships, purchase parking for the cars, where to
and the function of consent in the smart city replace if necessary, and where to place an
are raised. allowable ‘home area.’ For some companies,
the data collected is the real product – while
1. Introduction: Smart Cities – services may be free, access to users or their
data may in fact be what makes the
Swath Sections company profitable, as is the case with
technologies like bike-counting detection
Sidewalk Toronto has been the target of units. Yet while the types of smart cities
many a smart-city conversation. technology are boundless, there is one
Ambitiously, it aims to be as ‘smart’ as concern fundamental to their discussion,
possible – to combine as many possible particularly when, as in cases of entire city
smart city technologies to create a section of sections, data can be used for multiple
a city that fosters and promotes ideals such purposes: privacy. Data is useful,
as urban growth and innovation; marketable, and capable of making cities
sustainability; affordability; mobility; and more efficient, but may do so at the cost of
economic opportunity.1 For the purposes of individual privacy.
discussion, this type of large-area
application of smart city technologies will be 2. Analysis
referred to as a 'swath section.'
Smart city technologies fall under a broad 2.1 Data Collection in Smart Cities
umbrella, but largely into the definition of
technology that analyses large amounts of Smart city technologies run on data. In
data in order to improve its services. swath section applications such as Sidewalk
Labs' proposed Waterfront Toronto, the
data may improve the way the city runs. In
fact, the concept of 'open data,' or making as
1 Sidewalk Labs, "Our Vision", (2018) online:
much data broadly available as possible,
2 Pedestrian Curiosity
does just this, for large swaths of cities down applies to a distinct, listed set of mostly
to individual, small areas such as a single federal public entities. For other federal
intersection. Yet for many private works, undertakings, and businesses, as well
companies, the data itself is a commodity - as where there is commercial activity, the
data can be sold very profitably to parties Personal Information Protection and
interested in compiling data profiles, Electronic Documents Act (PIPEDA)
targeting advertising, or analyzing applies. There are carve-outs of applicability
behaviour, to name a few. It doesn't take an for provinces with ‘substantially similar’
active imagination to deduce that an privacy legislation, which currently includes
insurance company might be interested in Quebec, British Columbia, and Alberta.
knowing the heart-rate of users of a bike- Ontario, New Brunswick, Nova Scotia, and
sharing platform, particularly if they can Newfoundland also have their own carve-
combine that information with other outs for health-related privacy legislation.
sources to build an accurate, if not perfectly So while PIPEDA may be the default
identifiable, profile of such an individual. application in the private sector, it is by no
While swath section supporters often means the given applicable legislation. In
propose the de-identification of data - terms of PIPEDA, application and thus the
stripping it of identifiable characteristics - consent requirement occurs outside of
the risk of re-identification is very real, federal works, undertakings, or businesses
particularly in cases where multiple data when there is commercial activity at play.
collecting technologies are at play in an While provincial legislation may not apply
individual space. Collection then becomes a exactly the same way, it will be substantially
balancing act between privacy and similar for private enterprises. For
profitability - the more anonymous the provincial government entities, provinces
collected data, the more private to the have their own legislation, such as Alberta's
individual, but the less useful to the Freedom of Information and Protection of
company. For example, data that identifies Privacy Act for public entities, and the
age, gender, habits, and location are much Health Information Act for health records.
more desirable to companies than that
which merely identifies a person's presence. 2.2.a Commercial Activity
Even a data set that only identifies a
singular characteristic can be combined Whether or not there is commercial activity
with others: "[s]sophisticated algorithms is not a straightforward question to answer,
can be used to match these different data particularly in regards to smart cities. The
sets to re-identify specific individuals, federal Office of the Privacy Commissioner,
contributing to widespread practices around or OPC, has clarified that for municipalities,
profiling individuals.2 While one individual educational institutions, and hospitals, the
company operating and/or collecting in a question is not whether a fee is charged, but
smart city swath space may not use data for whether they are engaged in trade and
a non-consented to purpose, that data might commerce contemplated by the Canadian
be combined with other information by a Constitution.3 Indicia of this can include
third party to do so. whether the institution is dependent on
municipal or provincially levied taxes and
2.2 Jurisdiction of Privacy Law in provincial grants.4
Canada
3 Office of the Privacy Commissioner of Canada,
Jurisdiction of privacy law in Canada is "The Application of PIPEDA to Municipalities,
exceptionally complicated. The Privacy Act Universities, Schools, and Hospitals"
online: (2014) 6 Future Internet 2, at 407 4 ibid
Pedestrian Curiosity 3
it determines how personal information is
Smart city initiatives raise a variety of collected, used, or disclosed. While there are
questions. First: to what extent must an exceptions, the general rule is that in order
initiative be related to a municipality to fit to collect personal information, PIPEDA-
under this exception? It is clear that, for governed organizations are required to
example, a city-run road repair crew would obtain meaningful consent.5 Meaningful
be considered municipal government consent involves more than just ticking a
activity. Yet it is not clear that a partnership box. The entity seeking consent must
between public and private entities would emphasize key elements of what is being
be, wherein municipal activity and non- consented to; allow individuals to control
municipal activity is found. Metrolinx, for the level of detail they get and when;
example, is a provincial Crown Corporation provide individuals with clear options to say
that provides transportation in the province ‘yes’ or ‘no,’; be innovative and creative in
of Ontario. Ontario does not have broad adopting the methods seeking consent
private-sector ‘substantially similar’ specific to context; consider the consumer’s
legislation, so PIPEDA prima facie applies. perspective; make consent a dynamic and
Metrolinx takes money directly from ongoing process; and be ready to
consumers to perform an optional demonstrate compliance.6
commercial service, which would fall under
most definitions of commercial activity. Yet 2.3 Why is consent so important?
Metrolinx purports not to be covered by Consent is important for many reasons. It is
PIPEDA, with the rational that they do not the way individuals decide how their data is
undertake commercial activity. Data about
used, and whether or not they will allow
users’ cards, and their transfers, locations,
and habits, thus resides in an unusual other entities to use it. PIPEDA requires that
governance space. It may be governable the “knowledge and consent of the
under Ontario’s provincial privacy laws - the individual are required for the collection,
Freedom of Information and Protection of use, or disclosure of personal data,” and
Privacy Act (FIPPA) and the Municipal provides only strictly limited exceptions for
Freedom of Information and Protection of legal, medical, and security reasons. 7 While
Privacy Act (MFIPPA), but these have not there are bare-minimum governance
been accepted as on par with PIPEDA. The requirements, such as for tax purposes,
data thus occupies a space lacking
individuals technically have control over the
governance. In swath sections, private
companies are likely to be engaging in vast majority of their personal data, and
activities that are often considered whether or not they decide to allow it to be
municipal (garbage collection, street collected, used, or disclosed. Or, rather, they
cleaning, etc). should - but companies may or may not
adhere to legal responsibilities. The OPC
Other quasi-governmental initiatives are notes that meaningful consent should
likely to encounter similar problems. Where include emphasizing the following: 8
cities have partnerships with private actors,
the private actors actors are likely to argue
that they are not engaged in commercial
activity - that where they engage in activity 5 Office of the Privacy Commissioner of Canada
that is typically undertaken by cities, they "Guidelines for obtaining meaningful consent"
are instead engaged in municipal activity
6 ibid
7 Personal Information Protection and Electronic
Whether or not PIPEDA or substantially Documents Act, SC 2000, c 5,
similar legislation is engaged is important as 4.3
8 ibid
4 Pedestrian Curiosity
What personal information is being only an important tool in management of
collected personal information, but one which, in the
With which parties personal context of privacy, must be held to a high
information is being shared standard. Passive, assumed consent is
For what purposes personal insufficient. Smart city swath sections
information is collected, used or propose to create a part of the city that
disclosed permits collection of a vast amount of data.
Risk of harm and other consequences Even in the face of de-identification, there
Furthermore, companies must have consent should be a great deal of concern over the
to collect, use, or disclose any personal combination of data available in a definable
information. While many companies geographic section, maximizing the
interpret 'personal information' to mean any likelihood of combination of datasets.
information that can identify a person, the Consent must be meaningfully obtained for
legal interpretation is actually much broader. each and every collection. Swath section
Personal information includes any companies have failed to address what
information about an identifiable individual consent might look like on a granular level.
- "not just the subject of something but also It is insufficient to assume meaningful
relates to or concerns the subject."9 consent when it rests on the assumption that
Exceptions do apply, such as to business the individual is aware that the swath section
contact information, but in general collects information: “[c]onsent is only valid
application a "broad and expansive where the individual can understand that to
interpretation" is appropriate.10 which they are consenting.”11 Consider a
sign noting such collection. The individual
2.4 The ultimate issue - the requirement must be told what personal information is
of consent for sharing personal being collected (possible); with which
information in a smart city context parties personal information is being shared
(difficult); for what purposes personal
Swath section smart city areas increase the information is being collected, used, or
level of concern for privacy and consent. disclosed (exceedingly difficult to fit on a
First, the type of data that qualifies as billboard); and, most importantly - risk of
personal information may be broader than harm or consequences (exceedingly
companies are prepared to address. For unlikely). Business models based on data
example, in sparsely populated areas, even collection, either internally or externally,
bike counting data can count as personal thrive because individuals do not realize
information as it could easily be matched to what their information could be used to do:
individuals. Second, current legal definitions the consequential loss of privacy to simply
of commercial activity may be insufficiently entering such a section of the city may be
specific to hold quasi-municipal entities to higher than citizens wish to contemplate.
task on data protection to the standard
required by PIPEDA. Third, consent is not 4. Conclusion
9 Office of the Privacy Commissioner of Canada
"Personal Information" 11 Office of the Privacy Commissioner of Canada
; Personal
interpretation-bulletins/interpretations_02/> Information Protection and Electronic Documents Act, SC
10 ibid 2000, c 5, 6.1
Pedestrian Curiosity 5
There are a great deal of unknowns in the compliance-help/pipeda-interpretation-
governance of data collection in the smart bulletins/interpretations_02>
cities space. Privacy is a commodity, and
whether it is being begged, bartered, or sold,
the smart city swath sections will become a
particular battleground. There are issues of
jurisdiction, governance of data, and
handling of consent that must be addressed,
lest the swath section be ungovernable by
current privacy legislation. Ultimately, there
must be a call to fill the blind spot of how
meaningful consent in the smart city swath
space will be filled.
References
Personal Information Protection and Electronic
Documents Act, SC 2000, c 5,
Sidewalk Labs, "Our Vision", (2018) online:
Teresa Scassa, “Privacy and Open Government”,
online: (2014) 6 Future Internet 2’
Office of the Privacy Commissioner of Canada,
"The Application of PIPEDA to
Municipalities, Universities, Schools, and
Hospitals"
Office of the Privacy Commissioner of Canada
"Guidelines for obtaining meaningful
consent"
Office of the Privacy Commissioner of Canada
"Personal Information"