Washington Lawyer - November 2018 - 20

I do think it's inevitably
true that law and
regulation lag behind
technology and business
practices. In some
circumstances that is a
feature and not a bug.

JOHN VERDI, Future of Privacy Forum

"Government entities are increasingly engaging in the kind of data collection
and sharing that commercial entities have done for many years," says Verdi.
"Sometimes they're subject to different legal regimes. Sometimes they're
subject to different expectations from citizens in contrast to the expectations
consumers might have of a commercial entity."
Liability issues could surface in respect to the accuracy and reliability of
data obtained through smart city technologies. Faulty algorithms or bad data
may lead to decisions that waste resources or weaken government authority.
Experts say cities must invest in cyber protections to safeguard their smart
city infrastructure.
"Cities are notoriously insecure," says John Simek, vice president of Sensei
Enterprises, the cybersecurity forensics company. "Many cities across the
nation are amping up their cyber insurance because they're feeling the threat
from smart city technologies."
At the same time, municipal governments have a responsibility to ensure
transparency in the collection and sharing of data. Open Government initiatives encourage government officials to be transparent and to repurpose its
data to the community's advantage. It also focuses on allowing broad public
access to the data, generally without charge.
Two unusual factors are contributing to concerns about smart city privacy
and security. Smart city technologies open up new avenues for data collection that have heretofore not been regulated, such as streetlight nodes.
Additionally, the sheer number and variety of smart city applications
contributes to a fragmented ecosystem that increases the potential for
gaps and diminishes standardization.
Smart city technology may unearth network vulnerabilities that were isolated
to one person in the past, but now, like a severe bout of flu in an elementary
school, could spread out and be exploited to destabilize an entire ecosystem.
Legal experts say an additional thorny issue for technology-driven applications in smart city environments is consent. Someone driving a car down

20 WASHINGTON LAWYER

NOVEMBER 2018

the street or walking on the sidewalk will likely not have a chance to consent
to data collection from lampposts, trash cans, or drones.
All these monitoring sensors have a natural application for law enforcement
agencies, as well, and there the privacy anxieties proliferate. Facial recognition
software and location monitoring are valuable tools for police to track down
suspects in real time, but they do raise privacy considerations. A July 2016
study from Erasmus University Rotterdam in the Netherlands and printed
in the Government Information Quarterly examined how these smart city
applications can shift easily from public service to public surveillance.
"[T]he potential to mine the data for more personalized information and
targeting of city services are endless and hence, there is a continuous risk of
these services being pulled towards the more problematic quadrant where
privacy is at stake, and purpose may shift away from service to surveillance,"
the report said.

PATROLLING SMART TECH
Municipalities have not abandoned their responsibilities around privacy and
security. Many of them have turned to outside agencies to develop strategic
privacy programs to manage smart city applications, while others have reinforced rules and regulations to ensure transparency and consent. They've also
developed policies to ensure data is stored locally, and that there are chances
to minimize privacy threats by de-identifying certain data.
"The nature of smart communities requires cities to plan things in a central
way over time," says Pearson, the cybersecurity expert at Hogan Lovells.
"Those cities taking an active role in having a vision for a smart city have
a better chance of tackling the privacy issues in a cohesive way. It's a very
complicated set of issues when you deal with them piecemeal. They must
be dealt with early and in a broad, methodical way."
But while current municipal regulations and laws may cover aspects of smart
city technologies, experts say there are not all-encompassing state or local
statutes specifically governing the smart city ecosystem.

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Washington Lawyer - November 2018

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