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International: Privacy implications of wearable tech: Part 3

The legal challenges presented by wearable tech undoubtedly require a multifaceted and nuanced approach. Following on from Part 2 of this series, Saba Samanian, Associate at Norton Rose Fulbright, discusses how to actively involve innovators in making such technologies privacy friendly.

Kodochigov / Essentials collection / istockphoto.com

The second prong of the solution: the entrepreneurial strategy

A notable problem with updated regulations being the sole component to a solution is that the pace of enacting the necessary regulations is simply too gradual to effectively keep up with the fast pace of innovation and technology. Indeed, we have already witnessed how the law is unable to capture recent innovations that use biometrics1. It is for this reason that a pragmatic solution requires a component that will fill this time lag. It is at this juncture where educating the entrepreneurs who are active in this space plays an important role. Additionally, the already available tools like legal clinics and public forums should be used as effective ways to carry out this component of a comprehensive solution.

An in-person interview with Maryam Sabour, the Chair of the Board of Compass Startup & Legal Clinic, sheds important light on this. Sabour's experience with the entrepreneurs who received legal assistance from the clinic, specifically with respect to smart wearables, showed that a risk of diminished privacy was simply not on their radar2. However, this was not because these entrepreneurs intended on acting maliciously in order to further their innovation, but simply because they were unaware that privacy should be a consideration. Sabour further confirmed that legal clinics could be used to educate entrepreneurs on the importance of privacy and consumers' rights with respect to innovations that offer benefits at the expense of a potential risk to privacy. This type of education is not already built into the infrastructure of most legal clinics, but it supports the regulatory strategy mentioned above. By being informed of the legal risks, entrepreneurs are then equipped to engage in cognizant conversations with the legislature, as mentioned above, and therefore effectively address issues with the force of regulations. In fact, fitness tracker makers have already shown a willingness to do this by engaging in privacy talks with the Centre for Democracy and Technology to define best practices for wearables. The combination of regulatory updates and education of both consumers and entrepreneurs has been introduced in the US, but it is still in its infancy. It is the author's contention, however, that these two strategies can work hand-in-hand to offer a pragmatic solution.

This point was further confirmed during an interview with IP Osgoode Innovation Clinic Coordinator, Joseph Turcotte3. While Turcotte mentioned that entrepreneurs specialising in smart clothing are still rare, the IP Osgoode Innovation Clinic has assisted those working in the area of health-technology and solving real-world problems through fitness applications. However, similar to Sabour's experience, these entrepreneurs seem to be primarily concerned with commercialisation and intellectual property ('IP') strategies when they turn their mind to legal implications. Once again, this cannot be attributed to malice, but simply to the fact that there is a general lack of awareness regarding the intersectionality of privacy and wearable clothing. Admittedly, the IP Osgoode Innovation Clinic mainly handles IP issues; however, Turcotte states that those working in the FinTech sphere, given its established regulatory environment, have raised privacy concerns in the past. This demonstrates that entrepreneurs will actively engage with privacy concerns as long as such an established regulatory climate exists. Indeed, Turcotte states that entrepreneurs are increasingly willing to fill in the niche of privacy concerns and strike a balance between technological advancement and privacy, especially if the impact on the market is in their favour by taking such measures. In other words, the days of 'move fast and break things' in technology can end as long as the regulatory environment responds correctly. Indeed, several organisations, including one called Women of Wearables4, are geared towards bringing together the fields of entrepreneurship, fashion, technology, and the law in order to facilitate conversations about important concerns with related innovations.  Accordingly, the solution proposed here aims to fill the gap between the regulatory and entrepreneurship industries.

Conclusion

Smart clothing presents an area in recent technological advancement that poses a notable tension with privacy law. Furthermore, given the benefits that this innovation offers, ranging from convenience to medical need, means that it is worthwhile to adequately respond to these concerns and strike an appropriate balance.

In doing so, the goal of this essay has been to critically examine whether technological advancement has progressed too far, to a point where our personal privacy is put in serious jeopardy. However, a critical analysis showed that there does not need to, unavoidably, be a choice between technological advancement and privacy protection. Indeed, there does exist a route that allows us to reap the benefits of smart clothing, while keeping personal data privacy in mind. Therefore, a two-pronged pragmatic solution for this happy medium was posed. 

Given the novelty of smart clothing, the scarce research (especially empirical research) made it incumbent upon me to conduct interviews of my own throughout my journey geared towards learning as much as possible about this area of technology. These conversations revealed the potential of smart clothing, and the various industries that can benefit from this innovation. As a result, it is important to carefully consider the legal, technical, and practical implications and join forces to push innovation forward. Anything less would be a disservice to entrepreneurship for the greater good, which is the heart of IP and privacy law.

Saba Samanian Associate
[email protected]
Norton Rose Fulbright, Toronto


1. 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].
2. Maryam Sabour, interviewed by Saba Samanian (Toronto: October 12, 2018).
3. Joseph Turcotte, interviewed by Saba Samanian (Toronto: October 31, 2018).
4. Marija Butkovic, interviewed by Saba Samanian (Toronto: November 25, 2018); Women of Wearables, 'Women of Wearables', accessed on November 19, 2018. Available online: https://www.womenofwearables.com. Please see FashionTech Toronto (available at: https://www.fashiontechtoronto.com) as another example.