Smart Cities, Artificial Intelligence and Public Law: An Unchained Melody

Abstract

Governments and citizens are by definition in an unequal relationship. Public law has sought to address this power asymmetry with different legal principles and instruments. However, in the context of smart cities, the inequality between public authorities and citizens is growing, particularly for vulnerable citizens. This paper explains this phenomenon in light of the dissonance between the rationale, principles and instruments of public law and the practical implementation of AI in smart cities. It argues first that public law overlooks that smart cities are complex phenomena that pose novel and different legal problems. Smart cities are strategies, products, narratives, and processes that reshape the relationship between governments and citizens, often excluding citizens who are not deemed as ‘smart’. Second, smart urban solutions tend to be primarily predictive as they seek to anticipate, for example, crime, traffic congestion or pollution. On the contrary, public law principles and tools remain reactive or responsive, failing to regulate potential harms caused by predictive systems. In addition, public law remains focused on the need to constrain human discretion and individual flaws rather than systemic errors and datafication systems which place citizens in novel categories. This paper discusses the dissonance between public law and smart urban solutions, presenting the smart city as a corporate narrative which, with its attempts to optimise citizenship, inevitably excludes thousands of citizens.

Keywords: smart cities; regulation; AI; administrative law; inequality; public law; smart citizen; cities

JEL Classification: K10