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Data protection in smart cities. Balancing fundamental rights with public interests in a complex and multi-actor environment

Publication date: 2024-06-10

Author:

Christofi, Athena

Abstract:

Modern cities aspire to become, and have begun transitioning to smart cities. The term 'smart city' describes the increasing use of Information and Communication Technologies (ICTs), Artificial Intelligence (AI) systems and data to monitor urban spaces and transform urban governance, in order to address urbanization challenges. In Europe, smart cities develop gradually through the emergence of several 'smart city projects'. Cameras monitoring certain streets, sensors and software measuring people flows in crowded squares, algorithms supporting local authorities to allocate and retract welfare benefits, are notable examples. Smart cities bring great benefits to their residents and visitors. Quality of life can be meaningfully improved if smart city projects help to keep parks and squares safe and clean, or give priority to pedestrians and cyclists during rainy weather. At the same time, smart city projects, and our cities' gradual development to smart cities, can impact several fundamental rights. When smart city projects process personal data, there is an interference with the right to the protection of personal data. When sensors monitor city spaces, they also monitor people in them, and can impact citizens' privacy. Rights whose enjoyment is closely linked to the use of public spaces, such as freedom of assembly and association, freedom of expression, and freedom of movement, could also be endangered by projects tracking or nudging citizens. Biased data and algorithms pose risks for discrimination. Finally, the extensive use of data and algorithms in public service provision could affect certain social and economic rights, and rights related to good administration. The public interest benefits of smart cities thus need to be balanced with their possible impacts on fundamental rights. Against this backdrop, the thesis examines smart city developments from a European fundamental rights law perspective. More concretely, the objective is to evaluate whether European fundamental rights law, and especially the data protection legal framework, provide mechanisms enabling an accountable balancing of fundamental rights with public interests in smart cities. To this end, the thesis extensively discusses the questions of who should balance; how one should balance; and why one should balance in that way - questions closely linked to the notion of accountability and its importance for the development of smart cities. Moreover, considering that to create smart city projects public authorities often purchase technology products and services from private companies, the thesis also investigates how such balancing can be safeguarded during smart city-related public procurement processes. The thesis focuses on smart city developments and relevant legal frameworks in Europe and in Belgium, where the research takes place. The analysis is structured as follows. After the Introduction, which explains the context of the research, the research questions and methodology, Chapter 2 provides a legal analysis of (smart) cities. It sheds light on the several actors with competences on local matters, and the role of fundamental rights and public services in modern cities. The analysis reveals the legal complexity of smart cities. Chapter 3 analyses the European fundamental rights legal framework and its engagement in smart cities. It discusses the following fundamental rights which are affected or at risk in smart cities: privacy; non-discrimination; social and economic rights such as social security and work; good administration. The analysis reveals a number of limitations of the fundamental rights legal framework in addressing the challenges posed by smart city developments. The remainder of the thesis focuses on the European data protection legal framework, and mechanisms enabling an accountable balancing therein. Chapter 4 focuses on the principles of legality and lawfulness. By requiring the existence of clear and foreseeable legal bases to ground the processing of personal data in smart cities, they place a responsibility for legislators to balance the different rights and interests at stake. The extent to which this responsibility is complied with in the smart city context and associated challenges are discussed extensively. Chapter 5 examines balancing on the ground by the different public authorities developing smart city projects, through the conduct of Data Protection Impact Assessments. It also investigates whether a more strategic assessment that considers possible cumulative effects on fundamental rights of the several smart city projects existing in modern cities is necessary, and how it could be conducted. Chapter 6 addresses the interplay between data protection and public procurement in smart cities. It explains the importance of integrating data protection considerations in smart city-related public procurement in order to ensure that the purchased products or services respect fundamental rights. It also presents insights from a series of expert interviews conducted with public procurement and/or data protection experts experienced with smart city-related procurement in Belgium and the Netherlands, to understand current practices and challenges on the ground. Conclusions and recommendations for smart city stakeholders are provided in Chapter 7.