Washington Lawyer - November 2018 - 21

"The law is always limping behind the reality, particularly the tech reality,"
says Nelson. "We're taking constitutional principles like unreasonable search
and seizure, and we're not always applying [them]. We don't have regulation
specific to smart technologies, and this has been a matter for interpretation
in the courts."
On a national level, many observers expect those in Europe to be more
protected from bad actors in a smart city ecosystem. Europe's General
Data Protection Regulations (GDPR), which came out in May 2018, provides
a broad swath of privacy protections for EU citizens, and most of them
would apply to smart city technologies. In the United States, the Federal
Trade Commission has been watchful about the consequences of continuous location monitoring technology that is a fundamental principle of
smart city systems.

A LIGHT TOUCH ON REGULATION
Smart city systems are here to stay. Though citizens might complain about
the prying eyes in the sky or the corner trash bin, Americans have always
been willing to trade away some privacy for convenience, say experts. The
fact these technologies deliver so much value makes them all the more
difficult to disengage.
While privacy advocates may want to dial back some smart city tech, most
public officials and outside experts see too many benefits to shelve technologies that hold so much promise. Instead, they look to municipal governments to step up, consider their options, and adopt the types of rules that
can ensure the security and privacy of this phalanx of data.

Others argue that a light touch on regulation allows new technologies to
flourish at critical moments in their growth, and that this might be the case
with smart city technologies. As much as they build on established tech tools
and services, they still need some time to secure their footing.
With every advance of technology, especially ones that involve the collection
or management of information about the public, experts say there has eventually been an increased focus on privacy, security, and consent. The same will
be true of smart city applications, but those protections will likely happen
later rather than sooner.
"I do think it's inevitably true that law and regulation lag behind technology
and business practices," says Verdi. "In some circumstances that is a feature
and not a bug. When you look at the ability of American companies to
innovate and provide novel products and services without having a prescriptive, top-down system in place that stifles innovation, you see the importance
of taking a measured approach that benefits and protects everyone."

Sarah Kellogg is a regular contributor to Washington Lawyer.

Illustrations, ElenaBs / Alamy Stock Vector; Sharon D. Nelson, Sensei Enterprises; Harriet Pearson, Hogan Lovells;
John Verdi, Future of Privacy Forum

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Washington Lawyer - November 2018

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