Welcome to the metropticon: protecting privacy in a hyperconnected town.

• Author: Finch, Kelsey
• Position: Smart Law for Smart Cities: Regulation, Technology, and the Future of Cities

Introduction I. Smart City Innovation: Urban Utopia A. Finding Yourself B. Getting Around C. Keeping the Lights On II. Smart City Challenges: Life Inside the Panopticon A. Inviting the Government In 1. Pre-Urban Privacy 2. Urban Government B. Function Creep and Paternalism C. Sensors Under the Skin D. Discrimination and Data Overload 1. Discrimination 2. Data Overload III. Smart Privacy for Smart Cities A. Engendering Trust 1. Access 2. Data Featurization B. De-Identification C. Enhanced Transparency Conclusion INTRODUCTION

Over half a century ago, Jane Jacobs sparked a revolution in urban planning with her 1961 book The Death and Life of Great American Cities, challenging the first wave of progressive urban renewal policies for failing to respect the needs and diversity of city-dwellers. (1) The urban redevelopment projects against which Jacobs fought aspired to revitalize and modernize U.S. cities in the postwar era, but failed to produce concrete results. (2) Ultimately, they collapsed under the weight of their own mixed performances and the vocal criticism of social reformers; their legacy lingers in "[a]rtists' renderings of slick glass and steel skyscrapers set in sunny plazas ... nurturing] hopes of a golden future." (3) For all of their high hopes, diverse and multitudinous supporters, technological promise, and intelligent planning systems, the first wave of urban renewal programs have gone down in history as "planning panaceas." (4)

Today, once again a diverse array of urban planners, businesses, technologists, academics, governments, and consumers have begun to join their voices in support of the newest revolution in urban planning: the smart city. Driven by the technological promise of the Internet of Things (the increasing array of objects and devices that communicate with each other over the network) and the intelligent planning systems of big data (the enhanced ability to collect, store, and process massive troves of information), smart city initiatives are equally, if not more, disruptive to the urban existence of today as slum-clearing urban renewal efforts were in the previous century. Smart city technologies thrive on constant, omnipresent data flows captured by cameras and sensors placed throughout the urban landscape. These devices pick up all sorts of behaviors, which can now be cheaply aggregated, stored, and analyzed to draw personal conclusions about city dwellers. (5) This ubiquitous surveillance threatens to upset the balance of power between city governments and city residents, and to destroy the sense of privacy and urban anonymity that has defined urban life over the past century. (6)

Although privacy advocates may yet stand in for Jane Jacobs and other social reformers in this modern urban planning debate, it is far from clear that smart cities are mere panaceas. Smart cities bring cutting-edge monitoring, big data analysis, and innovative management technologies to the world of urban planning, promising to make cities "more livable, more efficient, more sustainable, and perhaps more democratic." (7) Of course, "clever cities will not necessarily be better ones." (8) There is a real risk that, rather than standing as "paragons of democracy, they could turn into electronic panopticons in which everybody is constantly watched." (9) They are vulnerable to attack by malicious hackers or malfunction in their complex systems and software, and they furnish new ways to exclude the poor and covertly discriminate against protected classes.

This Article asks whether the compelling benefits of ubiquitous data collection can be squared with privacy concerns, whether our future cities will evolve into dystopian urban panopticons or into utopian spaces without crime, pollution, or over-crowding. Part I of the Article describes the benefits and promises of data-driven, hyperconnected smart cities, including technologies to navigate and traverse urban spaces and cultures, as well as more efficient and ecofriendly smart infrastructure systems. Part II describes some of the privacy risks and challenges attendant with bringing big data and ubiquitous sensors to every public--and private--space, including normalizing surveillance, institutional paternalism, increasingly intrusive monitoring, data overload, and discrimination. Part III argues for smart systems to be developed without becoming systems of mass surveillance. It calls for big data privacy solutions such as access rights and data featurization, de-identification, and enhanced transparency to be deployed via both law and technology.

1. SMART CITY INNOVATION: URBAN UTOPIA

   Since their earliest days, cities have been imbued with a sense of

   progress and promise. Today, they are home to the newest trends and technologies, capable of driving national agendas and discussions on their own. Cities, at their best, are "hubs of human connection, fountains of creativity, and exemplars of green living." (10) At their worst, "they still suffer the symptoms of industrial urbanization: pollution, crowding, crime, social fragmentation, and dehumanization." (11) Smart cities, however, promise to ameliorate these frictions of urban life, optimizing services to cater to individual needs and preferences and furnishing real-time solutions to the hardships and inconveniences of city life. Moreover, they promise to usher city-dwellers into a new era of tech-driven efficiency and equality.

   1. Finding Yourself

      In today's sprawling metropolises, no matter how carefully planned (or how organically chaotic) the streets are arrayed, it is easy to get lost. While being stuck on the wrong side of a subway platform or struggling to navigate confusing, unmarked side-streets is perhaps the most common form of losing yourself in a city, the urban "culture of inattention" creates social and cultural divides that can leave city-dwellers equally lost, living in a city "full of strangers." (12)

      Smart city technologies, however, have begun to provide both physical and cultural maps to help direct the lost, as well as the merely curious, towards a greater understanding of where things (and people, and events, and resources) are in the city. (13) For example, those simply trying to figure out how to get from point A to Z can now use comprehensive transit apps like Citymapper, which won the New York MTA's 2013 App Quest Competition for integrating location services with "real-time data and [for] its ability to track multiple forms of New York's transit. This includes subways, busses, and even the newly-introduced Citibikes." (14) Other contestants sought to use location services to highlight and increase the accessibility of city life's more sociable aspects, such as an app that "matched people with their favorite subway musicians." (15)

      On the other end of the spectrum, the ready availability of public data, social media, and machine learning software helps academics, advocates, and urban planners better study "the dynamics, structure, and character of a city on a large scale." (16) By compiling and analyzing public tweets and social check-ins at locations around the city, the Livehoods Project, for example, explores "how people actually use the city, simultaneously shedding light onto the factors that come together to shape the urban landscape and the social texture of city life, including municipal borders, demographics, economic development, resources, geography, and planning." (17) By mapping and aggregating actual route data and destination activities of city-dwellers, Livehoods captures the character of dynamic urban neighborhoods, defined "not just by the types of places found there, but also by the people who choose to make that area part of their daily li[ves]." (18) It teaches us, for example, that individuals who check-in in New York's Upper West Side (number one location: Whole Foods) also tend to travel to midtown (for work) or downtown (for play) but seldom to the Upper East; while Chelsea check-ins (think Chelsea Market and wine shops) also frequent the Lower East Side and the East Village. (19)

   2. Getting Around

      The success and promise of smart technology and infrastructure in cities is evident in the ever-expanding range of new urban transportation services, which not only use ubiquitous technology and sensors to streamline public transit but have also sparked responsive, data-driven private alternatives. (20) Through the efforts of both diligent city planners and "DIY urbanism," subways, buses, cars, taxis, bicycles, sidewalks, parking spaces, tolls, traffic, and road construction, conditions and improvements can all be monitored and optimized in real time, saving businesses, residents, and governments significant time and money while better ensuring millions of people can get to where they need to go. (21)

      While many city-dwellers scoff at even a data-driven public transit commute, data-driven private transit opportunities are also beginning to sprout. In addition to app-based taxi-substitute services like Lyft or Uber, urbanites are now offered premium-priced "pop-up" bus services. One such bus service, Bridj, "collects millions of bits of data about people's commutes from Google Earth, Facebook, Foursquare, Twitter, LinkedIn, the census, municipal records and other sources" in order to design dynamic bus routes, using technology to make transit even more efficient. (22) Other data-driven bus services can target specific demographics and tailor routes to their needs, such as BreakShuttle, "which takes college students back home during school breaks." (23)

      More prosaically, but also more importantly for car-owning residents or visitors to modern cities, parking and toll alert and payment systems dramatically reduce the daily frustration of parking in the city. (24) Electronic toll collection systems have become the norm in both urban and non-urban spaces, using RFID tags and video cameras so that drivers can prepay tolls, eliminating the need to stop...