"WE KNOW NOT WHERE WE GO": PROTECTING DIGITAL PRIVACY IN NEW YORK CITY'S MUNICIPAL WI-FI NETWORK.

• Author: Hornbeck, Eric

Introduction 700 I. LinkNYC: Narrowing the Digital Divide While Widening Digital Surveillance Concerns 701 A. Closing New York City's Digital Divide as Mobile Broadband Usage Increases 701 B. The Smart Cities Movement and Digital Inequality 709 C. LinkNYC Privacy Policy Changed After Public Outcry 715 II. Judicial Approaches to the Technologies that Make up LinkNYC Kiosks 726 A. Fourth Amendment "Expectations of Privacy" and the "Third-Party Doctrine" 727 B. Tracking Real-Time Location Using GPS Technology 730 C. Tracking Real-Time and Historical Location Using Cell Phones 735 D. Tracking Location Using Facial Recognition Technology 740 E. Judges and the Public Have Different Ideas About Privacy 743 III. New York City Can Use Its Contracting Powers to Protect Privacy in Third-Party Smart City Services such as LinkNYC 746 A. Legislative Responses Can Protect Privacy While Courts Mull Issues 747 B. Greater Transparency Empowers Both Judicial and Public Oversight 751 C. Privacy Protections Should Be a Prerequisite to a City Contract or Franchise 756 Conclusion 759 INTRODUCTION

In 2014, New York City launched its ambitious LinkNYC public-private partnership to replace the city's public payphones with citywide internet service. The city granted a new franchise agreement to the private companies behind LinkNYC, which would then install thousands of sidewalk kiosks to bathe the city in free high-speed wireless internet ("Wi-Fi"). The program would allow the city to accomplish two goals: bridge the digital divide and make New York a more modern "smart city." In exchange, LinkNYC's backers would receive lucrative advertising revenue.

But LinkNYC also had a potentially sinister side: the specter of a mass surveillance network of cameras and sensors for law enforcement to follow New Yorkers wherever they went. A public outcry erupted. In response, LinkNYC changed its privacy policy to curtail the amount of information the kiosks could collect. With these changes in place, the network's deployment has continued unabated, even as some concerns still linger about what data, exactly, the kiosks collect, with whom the data is shared, and how the data is used.

The changing privacy policy showed both the promise and the limits of relying on voluntary privacy policies to protect New Yorkers from mass surveillance. The privacy policy changed in reaction to public opinion before anyone could attempt to look to the courts for clarity on the kiosks' data collection. The courts, however, are not necessarily able to provide clear guidance as they grapple with ever-changing new technology. Indeed, the kiosks themselves combine several types of data collection that are each subject to different lines of Fourth Amendment cases, including real-time location tracking, historical location data, and (potentially) facial recognition technology.

New York City, however, does not need to wait for the courts to find a way through the judicial morass and respond to New Yorkers' privacy concerns. The city can use the power it wields over digital service providers through procurement and franchise decisions to enhance New Yorkers' digital privacy and curtail the specter of mass surveillance systems. As city officials express growing concern about both privacy and closing the digital divide, the LinkNYC experience shows how they can better achieve those goals by requiring that franchisees like LinkNYC reveal more about what data privacy New Yorkers are sacrificing in exchange for the benefits of ubiquitous Wi-Fi and other smart city initiatives.

Part I of this Note explores the digital divide, the smart cities movement, how the LinkNYC kiosks fit in both concepts, and the changes that have occurred to the LinkNYC privacy policy. Part II discusses the Fourth Amendment applications to the new location-tracking technologies that make up, or could make up, the LinkNYC kiosks, including real-time location tracking, historical location tracking, and facial recognition technology. Part III proposes that the city take the changes it made to the LinkNYC privacy policy even further: require vendors to be more transparent about the data collected by smart city initiatives like LinkNYC and face consequences if promises are broken. Such an approach will better-inform New Yorkers about the data collected about them, will allow for a clearer judicial response if that collection goes too far, and is a practice that technology companies themselves have already adopted.

1. LINKNYC: NARROWING THE DIGITAL DIVIDE WHILE WIDENING DIGITAL SURVEILLANCE CONCERNS

   New York City launched LinkNYC to do two things simultaneously: make the city more equitable by providing internet access to more New Yorkers and "smarter" with innovative technology polices. But the initial roll out of the kiosks' privacy policy revealed that the New Yorkers most in need of greater internet access could be paying for it with citywide surveillance of their movements. The subsequent changes to the privacy policy revealed, however, that it may be possible to make the city smarter without sacrificing New Yorkers' privacy.

   1. Closing New York City's Digital Divide as Mobile Broadband Usage Increases

      The "digital divide" refers to "the economic, educational, and social inequalities between those who have computers and online access and those who do not." (1) The divide can be one of access to technology, people's comfort with new technology, (2) or socioeconomic factors that affect whether people will have access to and use modern technology such as computers, smartphones, and the internet. (3) Nationwide, nearly all young, affluent, and educated people have internet access. (4) But people who are older, less educated, and less affluent are less likely to use computers and less likely to have access to the internet. (5)

      The digital divide is not just about technology and internet access; the quality and speed of the internet access that is available also play a role in the divide. (6) Internet users increasingly use services that consume more data and require more bandwidth, and yet there are fewer high-bandwidth providers than there are low-bandwidth providers. (7) Such fast, high-bandwidth internet is known as "broadband." (8) Increasingly, the digital divide is discussed not just as the gap between those who have internet access and those who do not, but also as the gap between those who have access to broadband and those who do not. (9) How fast an internet connection must be to qualify as broadband varies, but the Federal Communications Commission ("FCC") has set a benchmark of 25 megabits per second ("Mbps") for downloads and 3 Mbps for uploads for fixed broadband services. (10) The FCC has not set a benchmark for how fast a connection has to be on mobile devices like smartphones to qualify as broadband. (11) In New York State, a grant program designed to increase broadband deployment throughout the state has set "a goal of 100 Mbps download speeds, with 25 Mbps acceptable in the most remote and rural areas." (12)

      Efforts to increase broadband usage are slowed largely by two cost-based factors: broadband availability and broadband adoption. (13) First, broadband providers are reluctant to invest in broadband infrastructure in less-populated areas where their return on investment is lower because they must install more equipment to connect fewer people than in densely-populated areas. (14) This presence, or not, of broadband service to users in a particular area is known as broadband availability. (15) Second, the high cost of internet plans makes people with limited income less likely to pay for access. (16) This is broadband adoption. (17) The cost of internet subscriptions for consumers is much higher in the United States than in other industrialized countries. (18) These dual costs of deploying infrastructure and of paying for use make the digital divide most persistent in poor rural and urban areas. (19) Even if broadband is available in a particular area, the costs to users can slow adoption of broadband in that area. (20) Those gaps can vary in different areas across the country. (21) In addition, the divide can be exacerbated by a lack of digital literacy, limited access to technology, and users' perception that broadband access would not be beneficial to them. (22)

      But the digital divide is not a mere annoyance; its pernicious effects can include a lower likelihood of school enrollment in households that do not have access to a home computer, (23) difficulty in finding employment, (24) and lower economic growth and quality of life. (25) Even in urban environments such as Detroit, the digital divide between more and less affluent neighborhoods might also have stifled the city's growth by making it harder for unemployed people to find jobs. (26)

      In New York City, the digital divide is deeper along socioeconomic and neighborhood lines--and is growing. (27) The higher cost of internet access in New York compared to other cities contributes to the digital divide. (28) In 2014, 16% of New York City households did not have computers. (29) According to 2016 U.S. Census Bureau figures, about 10.7% of households nationwide did not have a computer (which includes handheld computers like smartphones), and about 18.1% did not have a broadband subscription. (30) By 2016, in New York City, about 12% of households did not have computers and about 19.7% had no broadband subscription. (31) Even though those figures have improved, they hide big disparities among boroughs. (32) In Manhattan (New York County), about 9.4% of households did not have computers in 2016 and about 16.3% had no broadband subscription. (33) But during the same period in the Bronx (Bronx County), about 14.8% of households did not have computers and about 26.2% had no broadband subscription. (34) From 2013 to 2014, data suggest that the percentage of households that lacked broadband actually increased in the South Bronx and...