International: Privacy implications of wearable tech: Part 1
While privacy laws are generally intended to be technologically neutral, rapid advancements in areas such as wearable tech may create challenges herein. Indeed, wearable tech may have serious privacy implications and reveal much of the wearer's personal data, meaning that in practice they may be more like the emperor's new clothes. In Part 1 of this series, Saba Samanian, Associate at Norton Rose Fulbright, introduces this topic and discusses possible regulatory solutions.
The ever-growing strength of technology allows it to infiltrate and partner with other industries to form new solutions and innovations. One notable area in which this collaboration is starting to make an impact is fashion. Wearable technology, such as smart watches or smart headbands, has become somewhat common. Indeed, it has enabled users to conveniently stay updated on correspondence, plans, and even fitness schedules1. Smart clothing, however, has been less thoroughly explored and advertised to date. In fact, the 2015-2025 decade has been identified as the 'Wearable Era'2. This new realm of innovation takes the smart technology away from the wrist and integrates it into materials that cover all areas of the body, which results in a host of benefits. However, balanced with these benefits is the risk of diminished privacy given the clothing's ability to track any of the wearer's bodily metrics3. As a result, it is worthwhile to consider whether a regulatory solution could offer reconciliation.
Smart clothing offers a wide range of benefits. For example, athletes are now able to wear clothing during training that monitor a variety of helpful metrics including cadence, ground contact time, pelvic rotation, and stride length4. This results in a more efficient training routine since athletes can entrust their smart clothing with accurate monitoring, which allows them to solely focus on their activities5. Similar benefits apply to non-athletes, too. A collaboration between Levi and Google created the Commuter Trucker Jacket, which is connected to Google's Project Jacquard Platform6. This allows users to access music, GPS, and calling applications on their mobile devices without actually touching their telephones7. Another company has created a swimsuit that uses artificial intelligence to protect its user from UV protection by notifying the user when she has been in the sun for too long8. Furthermore, smart clothing now presents a solution for the segments of the population who need close medical monitoring, but cannot do so on their own, such as the elderly or infants9. As a result, the benefits span from convenience to safety. Additionally, there is also a reduction in healthcare costs because of efficient and affordable wearables10.
While both technology and fashion enthusiasts may be justifiably excited at the prospect of these innovations, there is also room for concern. Given the recent changes in fashion and the fact that technology is quickly getting to a point where it can obtain all of our personal data by getting it directly from our bodies11, privacy laws and implications must be considered. This also raises the question of how data collection from smart clothing is, in fact, different from data collection in other technological mediums. Are new or revised regulations even necessary, or should the privacy concern be a technology-neutral one? Furthermore, how does smart clothing fit with the consent and information collection and analysis (i.e. data mining) requirements under Canada's Personal Information Protection and Electronic Documents Act 2000 ('PIPEDA')? Indeed, these questions have not yet been thoroughly researched and written about, which presents a ripe area for analysis.
A possible path forward
Before diving into a proposed approach to implement an effective solution to resolve the tension between privacy and smart clothing, it is worthwhile to consider its scope. Therefore, given its legal nature, the first instalment of the analysis below will demonstrate that a successful solution does not necessarily mean reinventing the wheel. However, certain adjustments need to be made given the high speed of technology and the unique invention of smart clothing.
A critical consideration: new regulation is not necessary for smart clothing
The rise of new ideas and innovations have a tendency to create the illusion that a regulatory scheme is needed in order to capture and govern such inventions. However, it is important to question whether sui generis regulation is necessary, or whether regulations should be technology neutral. The implication of the latter would be that recent innovations like smart clothing should be able to neatly fit within the boundaries of the regulations currently in place for similar products.
From an efficiency perspective, it would be ideal to have technology neutral legislation. The speedy pace of technological advancement is simply not aligned with the much slower speed of legislative reform12. There is a significant amount of turbulence in technology and innovation13. However, the extent to which legislation can stay away from concrete technologies is heavily dependent on its ability to provide sustainable legal certainty14. This causes a tension with respect to solving a significant issue in technology, which is the urgency with which the legal problems they cause should be resolved. The impacts of a data breach, for example, are immediate and significant. This means that should a smart clothing consumer suffer a data breach, there must be accurate and applicable regulations in place to determine the correct course of action for relief.
Given this binary dilemma, it seems that a balance of both sides provides the most comprehensive answer; that is, while regulations should be technology neutral, they, at the same time, must be multi-levelled, with open-ended formulations, and offer a mix of both abstract and concrete rules15. Furthermore, such regulations must be periodically reviewed to ensure relevancy and test the scope of the rules to govern advancements and innovations in the foreseeable future at the time of each review16. The speed of technology, coupled with its serious security and privacy implications, demand no less.
For example, inventors of smart clothing in the United States are presently facing serious issues in their pursuit to navigate through the legal hurdles with respect to their products, simply because the law is not aligned with the advancement of technology17. Data management, for instance, has not yet been properly regulated to correspond to such technologies18. Regulatory approvals also pose a significant problem for device manufacturers and researchers since consent from the Food and Drug Administration (or a similar body) may take several years19. This further prolongs getting approval and certification from insurance companies for products like smart clothing20. Furthermore, forthcoming technologies, such as electronics miniaturisation and new biocompatible materials will need to be considered through a regulatory lens for various legal concerns, such as consumer safety and environmental impacts21.
That being said, there are strategies, as will be explored in the next instalment of the analysis, that should be immediately applied to the privacy laws in Canada given their notable need for an update. This is especially true in light of the upcoming legislative changes in Bill C-11, also known as the Digital Charter Implementation Act, 2020, which would repeal parts of PIPEDA and replace them with a new legislative regime governing the collection, use, and disclosure of personal information for commercial activity in Canada. Furthermore, such reform should not take the traditional form, as consumer and user input is highly important in order to keep the regulations relevant and direct. In this way, the regulatory structure would not only be effective, but it would also have a 'coherent moral centre that the public can comprehend and accept'22.
Saba Samanian Associate
Norton Rose Fulbright, Toronto
1. Gilsoo Cha, Smart Clothing: Technology and Applications (Boca Raton: CRC Press, 2009) at 23.
2. Jacques Bughin, Michael Chui, James Manyika, 'Ten IT-Enabled Business Trends for the Decade Ahead', McKinsey Quarterly, May 2013. [accessed on 26 April 2016]. Available online: http://www.mckinsey.com/industries/high-tech/our-insights/ten-it-enabled-business-trends-for-the-decade-ahead.
3. Kunigunde Cherenack and Liesbeth van Pieterson. 'Smart Textiles: Challenges and opportunities' (2012) 112 Journal Appl Phys 9 at 19 [Cherenack].
4. Min Chen et al, 'Smart clothing: connecting human with clouds and big data for sustainable health monitoring' (2016) 21 Mobile Netw Apple 5 at 827.
6. Tariq Ahmed, 'Miniature Wearable Microcontrollers for Smart Garments' (2018) 7 Uni Rev 9 at 109.
8. Ibid at 110.
9. Fabrice Axisa et al, 'Flexible technologies and smart clothing for citizen medicine, home healthcare, and disease prevention' (2005) 9 IEEE Trans Infor & Tech Biomed 3 at 327.
10. Min Chen et al. 'Wearable 2.0: Enabling Human-Cloud Integration in Next Generation Healthcare Systems' (2017) 55 IEEE Comm Mag 1 at 55.
11. Cherenack, supra note 3 at 21.
12. Roger Brownsword, 'Law, Liberty, and Technology' in Roger Brownsword, Eloise Scotford, & Karen Yeung, eds, The Oxford Handbook of Law, Regulation and Technology, (Oxford: University Press, 2017) at 53 [Brownsword].
14. Bert-Jaap Koops, Should ICT Regulation Be Technology-Neutral? in.STARTING POINTS FOR ICT REGULATION. DECONSTRUCTING PREVALENT POLICY ONE-LINERS, IT & LAW SERIES, Bert-Jaap Koops, Miriam Lips, Corien Prins & Maurice Schellekens, eds., Vol 9 (The Hague: TMC Asser Press, 2006) at 85.
15. Ibid at 88.
17. Giuseppe Andreoni, Carlo Emilio Standoli, and Paolo Perego, 'Defining Requirements and Related Methods for Designing Sensorized Garments' (2016) 16 Sensors (Basel) 6 at 778.
19. Ibid at 781.
22. Vaver, supra note 4 at 689.