Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m J U N E / J U LY 2 0 1 9 35 project that gave Sidewalk Labs the contract to develop the proposal was on board with her desire to have data de-identified at source and asked her to become involved. She jumped at the chance, and she is now advising pro bono, without any formal title. "I want to make it happen. . . . We have the legislation we need; I just want to go further than that. "I asked Waterfront Toronto to put out a statement that says anyone that's going to play with us on this board, anyone who's going to work with us must agree to de-identify data at source. Full stop. That's the price of admission so to speak. And they agreed to that," she says, hoping that she now has a better chance of seeing her vision realized than when she was working with Sidewalk Labs, which may or may not end up with the contract for the smart city implementation project. The Civil Liberties Association, meanwhile, is seeking legislative assurances "from the risks of surveillance capitalism on our streets" and is insisting that the project be put on hold until all three levels of government deal with issues related to the collection, ownership, use and storage of personal information generated in the project. In announcing its notice of application in April, the rights organization stated that the project's conception puts many of the rights valued by Canadians at risk by embedding multiple kinds of surveillance technologies into infrastructure. Privacy laws, it adds, were introduced before much of the technology was developed and data now has a different value. The association isn't satisfied that promises by developers to stay within certain data protection guidelines are enough. And it argues that the agreements at the heart of Sidewalk Labs are in violation of administrative constitutional law. As the development of Toronto's complete smart city wends its way through the conceptual phase, other cities are introducing parts of that technology to their infrastructure. The idea of smart cities is more about the use of digitally powered services enabled through a network of sensors where real- time information flows and doesn't necessary apply to entire neighbourhoods. A public transit user can check, in real time, how many minutes they must wait at a bus stop. Advanced traffic controls allow path planning through road network monitoring, which can provide emergency vehicles with the best route to reach an emergency or hazard zone. As municipalities replace aspects of their infrastructure, they will look to use these smart technologies. According to the Canadian Infrastructure Report Card, this infrastructure could be worth upwards of $1.1 trillion, and 35 per cent of those assets are in fair, poor or very poor condition. "In most cases, our cities are just becoming smart by increments. All of our cities have smart technologies that they're currently using; they just haven't got the whole city wired from the ground up," says Teresa Scassa, Canada research chairperson in information law and policy at the University of Ottawa, who is providing her observations to Canadian Lawyer independent of her role as a member of Sidewalk Lab's digital advisory panel. "I do think that, while some think about privacy when they're doing this, they're not necessarily thinking about privacy in a particularly co-ordinated way. And so there may be different choices made in different divisions or departments of the city, and some of those choices may not be the most privacy- friendly ones because, in all likelihood, they're balancing their interests and priorities as they see them with privacy," concluding some things may be more important than privacy, she says. "There are lots of technologies; if we sat down and looked at all of them, many of them that are already in place would raise some privacy concerns and many have already." As communities forge ahead into often new territories, they may make mistakes, overlook important considerations or make debatable deci- sions. Last year, Metrolinx, the Ontario Crown agency that manages public transportation, revealed that it shared the personal information of Presto payment card users to law enforcement agencies 30 times in 2017. The organization now reports on how often it shares data with police and reviews its privacy policy regularly. Although the safeguards are there, says Chantal Bernier, there is merit to continue discussions on what happens to all the data that is collected in public communities. And while the provincial and federal governments are becoming immersed on issues related to smart cities, the Ottawa-based Dentons Canada LLP counsel in the privacy and securing group, who served as Canada's interim privacy commissioner from 2013 to 2014, says it may be necessary to have another layer of accountability to ensure it has a heightened level of protection. "Current privacy law does set principles that are very clear that are based in human rights law that do protect us from an abusive model of these smart cities. That being said, it would certainly be a good idea to address it to make it more specific," she says. "Current privacy law does set principles that are very clear that are based in human rights law that do protect us from an abusive model of these smart cities." Chantal Bernier, Dentons Canada LLP

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