Governing Privacy in the Datafied City
53 Pages Posted: 12 May 2020
Date Written: October 25, 2019
Privacy — understood in terms of freedom from identification, surveillance and profiling — is a precondition of the diversity and tolerance that define the urban experience, But with “smart” technologies eroding the anonymity of city sidewalks and streets, and turning them into surveilled spaces, are cities the first to get caught in the line of fire? Alternatively, are cities the final bastions of privacy? Will the interaction of tech companies and city governments lead cities worldwide to converge around the privatization of public spaces and monetization of data with little to no privacy protections? Or will we see different city identities take root based on local resistance and legal action?
This Article delves into these questions from a federalist and localist angle. In contrast to other fields in which American cities lack the formal authority to govern, we show that cities still enjoy ample powers when it comes to privacy regulation. Fiscal concerns, rather than state or federal preemption, play a role in privacy regulation, and the question becomes one of how cities make use of existing powers. Populous cosmopolitan cities, with a sizeable market share and significant political and cultural clout, are in particularly noteworthy positions to take advantage of agglomeration effects and drive hard deals when interacting with private firms. Nevertheless, there are currently no privacy front runners or privacy laggards; instead, cities engage in “privacy activism” and “data stewardship.”
First, as privacy activists, U.S. cities use public interest litigation to defend their citizens’ personal information in high profile political participation and consumer protection cases. Examples include legal challenges to the citizenship question in the 2020 Census, and to instances of data breach including Facebook third-party data sharing practices and the Equifax data breach. We link the Census 2020 data wars to sanctuary cities’ battles with the federal administration to demonstrate that political dissent and cities’ social capital — diversity — are intrinsically linked to privacy. Regarding the string of data breach cases, cities expand their experimentation zone by litigating privacy interests against private parties.
Second, cities as data stewards use data to regulate their urban environment. As providers of municipal services, they collect, analyze and act on a broad range of data about local citizens or cut deals with tech companies to enhance transit, housing, utility, telecom, and environmental services by making them smart while requiring firms like Uber and Airbnb to share data with city officials. This has proven contentious at times but in both North American and European cities, open data and more cooperative forms of data sharing between the city, commercial actors, and the public have emerged, spearheaded by a transportation data trust in Seattle. This Article contrasts the Seattle approach with the governance and privacy deficiencies accompanying the privately-led Quayside smart city project in Toronto. Finally, this Article finds the data trust model of data sharing to hold promise, not least since the European rhetoric of exclusively city-owned data presented by Barcelona might prove difficult to realize in practice.
Keywords: Privacy, smart cities, federalism, localism, data trusts
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