The Tech Law Ultimatum: Consent or Exile?

The Tech Law Ultimatum: Consent or Exile?

Living in the twenty-first century comes with the need to manage expectations. While we live in a modern age with a variety of technological advancements, we may not be as innovative as we previously imagined. After decades of television shows like The Jetsons, some may even be inclined to ask, “Where’s my jetpack?”  Professor Daithí Mac Síthigh, during his Harry W. Arthurs Fellowship at Osgoode Hall Law School this fall term, recently spoke about the challenging relationship between technological innovation and the law. Prof. Mac Síthigh addressed the technological advancements we have made and what is still on the inventive (and legal drafting) table in his talkHelp! My Jetpack is an Algorithm: Smart Cities, Sharing Economies, and Law in the Face of Disruption”.

Professor Mac Síthigh drew on Sadiq Khan’s, the Mayor of London, address at SXSW this year and stressed the important role the law has in relation to technological and social development. At SXSW, Khan explained that the law plays a balancing role in mitigating the potentially negative impact of disruption while allowing society to evolve.

The concept of “smart cities” is something that highlights how the law is performing in the face of twenty-first century “disruption”. Professor Mac Síthigh linked the smart city concept to the sharing economy, which he defined as a situation that deals with transforming under-utilized assets in a manner that makes them more accessible to a community. This could lead to a reduced need for individual ownership of these resources.

Citing a recent CBC News article, Professor Mac Síthigh explored how the collection of data in these cities unveils new legal tensions. For example, Alphabet’s Sidewalk Labs is reimagining Toronto’s eastern waterfront area, Quayside. This variation of a smart city will use sensors to measure garbage disposal, recycling, noise, and pollution. The increased presence of cameras can even collect data to help improve the flow of traffic. While the project promises some of the twenty-first century innovations many have been waiting for, it also reveals how some of the risks of such technologies are underexplored.

There is an inherent trade off in collecting data to help cities become more efficient and green. Residents will be giving up their privacy rights for the good of society. There is no way to live off the grid in this type of environment, which means that if individuals want to be excluded from data collection, they would likely reside outside of this community. Is full consent or exile the only choice in the age of smart cities?

Currently, different Canadian laws may apply depending on which entity is collecting the data, thus presenting different methods of action for residents.

  1. If there is a commercial technology company collecting the data, the Personal Information Protection and Electronic Documents Act (PIPEDA) applies to these processes.
  2. When this data is collected, accessed, or used by federal government institutions, the Privacy Act applies.

Both of these acts regulate how personal information can be shared and this may be applicable to data collected through smart cities.

Research from the Canadian Internet Policy and Public Interest Clinic (CIPPIC) reveals one of the weaknesses of the law in their current forms. Where information is not “personal”, it can be freely shared with third parties. In order for data to be non-personal, technology companies would be required to strip the data of personal identifiers. So, the data on garbage disposal, for example, cannot be linked to any addresses, names, photographs, and so on in order for the information to be sharable. Another caveat in sharing personal information is that individuals can choose to protect their information through confidentiality terms in a contract. This means that there could be a great onus on the residents in smart cities to find ways to protect their information if they truly wish for their data to remain private.

As Professor Mac Síthigh’s talk makes clear, smart cities and the concept of a sharing economy are not new forms of technology, rather they are new processes that rely on data in novel ways. In the same way that technology companies have rethought data collection, it is necessary for lawyers and policy makers to rethink how the law applies to this newest iteration of technology. It requires a careful balance of the existing laws that seem applicable to smart cities, such as privacy laws, in addition to new provisions that give consumers more opportunities to protect and take control of their data without completely excluding them from the innovation process.


Summer Lewis is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.