Jack Balkin: jackbalkin at yahoo.com
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The “Responsive City” Reloaded: Can US Cities and Localities Push Against the Trump Administration also in the privacy field?
In a recent exhibition of Mark Tobey at the Peggy Guggenheim Museum in Venice, the curators beautifully invoke Tobey’s fascination with the City – “its dizzying, towering architecture, thoroughfares and pervasive whirl of electric light”. There are many reasons to be fascinated with modern urban centers – above all, their dynamic ambiguity – the controversial middle space they occupy between catalysts of both inequality and equality, of hope and hopelessness. But as new technologies are eroding the famed anonymity of city life, are our cities becoming also final bastions of privacy protections?
Associated with a Republican agenda at least since the days of Jim Crow in the United States, in the aftermath of the last election, state and local autonomy has become the new stomping ground for progressives. From so- called sanctuary cities that oppose anti-immigration federal policies to L.G.B.T. rights to environmental protection and healthcare, the push back against the Trump administration in the U.S. now comes from the bottom-up. Federalism academics have long noted the trend but what has gone under the radar is a new area of state and mainly local activism: call it “privacy localism”. Republican commissioners on the Federal Communications Commission have started pursuing the reversal of many Obama administration privacy and other policies, and legislation repealing such policies is under way (the latest offshoot being the announced repeal of net neutrality rules).
Populous “blue” states, such as New York, California and Washington, and especially local administrators within New York City, San Francisco and Seattle have countered by promoting ad-hoc privacy-friendly initiatives. At the state-level, officials were resisting requests by the Trump administration to access state voter registration databases, often seen as an ill-masked attempt to restrict voting rights. At the city level, the increased availability and use of data by both private providers and the law enforcement sector has resulted in a host of initiatives that aim to either limit access to the data or promote its accountable use. In competing for qualified labor and capital, US cities naturally aim at interconnectedness that fosters innovation through “smart city” and open data policies. Simultaneously, municipal executives have called for city data to be “open by preference” only or subject to principles that guide decisions about the use of open data in a way that does not create privacy harms. City ordinances are also being drafted to require local police departments to publish surveillance impact reports describing the capabilities and safeguards of powerful new surveillance technologies as a condition of deploying them.
In the face of Congressional backlog, states, and to some extent localities have been filling in the vacuum of federal privacy regulation even before Trump took office, but their role is becoming critical now. What can states and localities actually do? In the U.S., when Stephen Goldsmith and Susan Crawford wrote “The Responsive City: Engaging Communities Through Data-Smart Governance" little did they know about the extent of the tug-of-war between the local and the federal tier that would unravel. And when Richard Schragger spoke of “City Power”, he likely did not suspect that only a few years later he would have to add to his thesis that “what is striking about city power is how constrained it actually is.” Legally speaking, state pre-emption under US law is to municipal power what federal pre-emption is to state power. In other words, states are constrained in important ways by federal laws that set not only regulatory floors but also ceilings. Similarly, if a “blue” city in a “red” state passes an ordinance, the state legislature can follow up by passing sweeping laws that curb local authority. In practice, states and localities can do little to remedy serious federal shortcomings such as in, say, credit reporting. The city of San Francisco is however currently litigating against Equifax, after a privacy breach committed by the credit-reporting agency that exposed the Social Security Numbers of millions of Americans. Cities are not toothless: large urban centers in “blue” states can be influential, pedalling new experimental policies and good practices that can be later emulated by other states and localities.
In the sharing economy, US cities are on the forefront of developments too. Scholars argue that firms such as Airbnb and Uber, from being opponents of local governments will turn into their valuable partners, reducing regulatory risk and gaining local subsidies in exchange for addressing public goals. The potential symbiosis of local government and the private sector in the sharing economy does not seem too far-fetched. Sharing platforms such as Uber have clashed with local regulators over employment issues concerning the status of drivers, and some European cities have started regulating Airbnb rentals due to the displacement of local residents that Airbnb may provoke. But Airbnb and Uber have had many positive externalities for urban residents, too. Airbnb has attracted tourists and spurred the economic development of less advantageous areas, and in recent deals US cities have contracted with Uber or Lyft to allow train riders get a discount for transportation (saving cities the cost and congestion of building parking lots). When Airbnb collects data on guests or Uber – on GPS location, rich troves of information are produced. As scholars have recently argued, being indeed an urban phenomenon that addresses city concerns of density, proximity and anonymity, the sharing economy generates vast amounts of data that can help cities improve their services. For example, Boston has partnered with Uber to use aggregated traffic data from Uber to alleviate city congestion; and anonymized data from Airbnb can serve local authorities to identify housing shortages; in sum, shared data can help localities modernize their policies and regulations. Sharing practices can however have vast implications for the privacy of consumers and city dwellers. Thus, public-private partnerships on the local level can succeed only if this new drive toward responsible data use in US cities and localities is here to stay.
Bilyana Petkova is an Assistant Professor at the European and International Law Department of Maastricht University and a Visiting Fellow at the Yale Law School Information Society Project. You can reach her by e-mail at bilyana.petkova at yale.edu.