The question may arise as to whether “legal discourse” is needed in relation to “smart” projects and, if so, if it is sufficiently relevant as to deserve a central role.
Knowing how the city of Chicago has legally constructed its operational plan is interesting and is part of the political discourse of its current Mayor and the technical discourse of its providers.
Last November in Barcelona, the second Smart City Expo World Congress took place.
Both national and international representatives of telecommunications operators, electricity companies, IT solutions providers, the public and higher education sectors, among others, convened to share experiences and explore the best methods the market has to offer for developing what have come to be known as “smart cities”. This was fundamentally from a technological perspective, without forgetting, however, the political arguments that lead to the decision to implement such a project. Ultimately, this development seeks to provide public services in the most efficient and sustainable way possible for citizens, using information and communication technologies.
I had the chance to attend the Congress and see that what is relevant for the sector remains limited to two areas. Firstly, the technological discourse, namely, the various solutions the market offers for implementing the methods that result in “smart” public services or obtaining “smart” results. And secondly the political discourse, that is, the message a city government should communicate to its citizens, especially in times of municipal economic crisis like the current one, to convince them to invest part of the local budget in, for example, establishing an intelligent platform that allows information to be processed by thousands of sensors spread out over the city in order to improve the innovative provision of certain public services. This is for the benefit of citizens and also meets a public need.
From my perspective, the surprising thing about the Congress was that none of the discussion sessions included in the program was specifically dedicated to “legal discourse”. It was only alluded to in some of the sessions, in an absolutely marginal way, with expressions like “in the legal framework”. Regarding this, the question may arise as to whether “legal discourse” is needed in relation to “smart” projects and, if so, if it is sufficiently relevant as to deserve a central role, or at least a supporting (but not auxiliary) role, in a convention like the Smart City Expo World Congress or similar event. Undoubtedly, this is an issue of international scope, and the legal matters corresponding to the decision to implement policies aimed at making our cities “smart cities” must adhere to national regulations. Nevertheless, none of these decisions can be acted upon excluding legal jurisdiction, the law being the technical tool that finally gives weight to the technological and political discourses mentioned above.
I am convinced that for many of the attendants, learning firsthand from the experts how the City Hall of Santander legally put together their project to convert the city into a “Smart City”, or how the City Hall of Barcelona intends to do this, and how to analyze providers (Telefónica, Cisco, Siemens…) from this perspective would have been instructive and enlightening.
It would have been similarly enlightening to know how other jurisdictions have legally resolved some of the new problems this evolution in the provision of public services in cities has caused, because no matter where new incidents occur, comparing experiences can be highly beneficial. An example of these new challenges is, as evidenced in a number of sessions at the Congress, the management and control of “open data” or “big data”. This is, namely, data gathered from all of the sensors installed in a city for acquiring specified information, as well as data provided by citizens, through devices like their smartphones. This data, carried to the digital platform installed by the city government, allows for information to be gathered, new problems to be identified and for finding ways to solve them.
In an interview in “The Chicago Reader” (http://www.chicagoreader.com/), John Tolva, current Chief Technology Officer of the city of Chicago, says, “We are interested in looking at departments and services that you might not think are related to each other and analyzing them laterally to see if there are efficiencies to be gained and insight into how the city is used. Maybe there is some connection between rodent infestation and tree trimming—who knows? It’s never been looked at” (http://www.chicagoreader.com/Bleader/archives/2011/06/02/open-government-in-chicago-rahms-tech-and-data-chiefs-swear-its-coming). Chicago is one of the “smartest” cities in the US, along with Boston, San Francisco, Seattle and New York (http://www.fastcoexist.com/1680967/the-top-10-smartest-cities-in-north-america#1). And that is not thanks to the mechanisms that have been put in place so that citizens can apply for a license online (what we call e-Administration) or to one of its buildings being energy efficient: that is to say that it is not due to isolated decisions. It is due to how data obtained from the digital platform is organized and integrated, and to its various applications which allow the citizens of Chicago to interact with the city, providing information, in order to identify problems and take measures to solve them, trying to be as efficient as possible in all aspects of providing service (what is called “smart governance”). Knowing how the city of Chicago has legally constructed its operational plan is interesting, and it forms part of the political discourse of its current Mayor and the technical discourse of its providers.
In short, a question posed by an attendant to one of the sessions I attended at the Congress gives credit to the relevance of the legal side of this matter. It concerned a representative of a local government in an Asian country that had suffered the devastating consequences of a natural disaster. Having to rebuild the city, the representative asked the presenters about their viewpoint on which would be the “best practices” to follow from an urban planning perspective (that is, from a legislative perspective) in order to make the new city a “smart” city. While the question was pertinent to the topic of the session, the lack of an expert precluded a useful and concrete response.
Moreover, even from a strictly practical and definitive standpoint, it is important to both the technological and political discourses that legal advisors to local administrations which are trying to implement “smart” solutions, have knowledge of what that means in order to come up with the legal solution the best meets the desired “smart” objective. It is likely that many legal advisors to local institutions are not aware of the range of “smart city” projects that are addressed at the political level in their own town halls, not to mention those who have to provide legal counsel to local governments that have already planned their projects at the technical level. Making legal discourse part of the conversation in forums like the Smart City Expo World Congress would help enormously. Because when the time came to consider the channels of legal conduct in a particular “smart” project, the process would be simpler, more efficient, and more sustainable, bearing in mind that their inclusion, both in the public and private sectors, is inevitable.
It is essential that local governments are clear about the goal they are trying to reach when they implement a “smart” project (no simple matter) and about the technological and economical means necessary to that end. However, there comes a point – which should be as early as possible in the design of the project – when the local government and any other parties involved should ask themselves – better, ask their legal advisors – if the undertaking is legally viable. Simply put, the question that we lawyers most often hear is: whether or not the goal can be achieved and what the legal risks are if it is pursued under certain conditions. And in order to answer, legal advisors need to understand the result or technological solution, know for certain the objective being pursued, the means needed for its completion, and the obligations that the local government would assume in the achievement of these objectives. The legal counsel needs to understand their role in the process. For that, a legal discourse is relevant and should be encouraged.
There is no doubt that local institutions, in the scope of their competencies and in the framework of applicable legislation, can adopt the necessary measures to equip the provision of public services with the efficiency and sustainability that allows for the use of electronic communications and information technologies. What is more, the law, properly interpreted, provides the necessary tools for the provision of public services or the implementation of procedures of general local interest defined as “smart”. Nevertheless, the multitude of rules that must be taken into account when determining whether a “smart” project (beyond simply a pilot project) is legally viable, demands a high level of specialization in the field of public sector law combined with basic technology and communications knowledge for a proper understanding of the project to be analyzed. This, as well as the ability of the legal advisor to bring up to date the interpretation of laws that were approved in an age in which the concept of a “smart city” was unimaginable to the legislator.
The challenge that “smart city” projects entail in the sphere of local law is substantial and demands that legal advisors be capable of innovation within the law so that new models of smart cities become a reality. Innovation in, for example, local structure and organization, in the use of public domain, in the form in which citizens need to participate in the new model by means of mobile devices, or in the system of transparency that demands the concept of open data, among many other things.
Following the example of Chicago, “innovation and technology” has been created among the various departments of the local government, in charge of issues like those that we are discussing here. All the data obtained through sensors installed by the city hall, as well as that sent in by citizens through applications installed on their mobile devices, have been put to the service of citizens, in an exercise in transparency unknown by our local administrations. This practice of putting data at the disposal of citizens is not just for informational purposes but also, for example, so that new beneficial applications can be developed for citizens (http://www.smartchicagocollaborative.org/list-of-apps-for-metro-chicago-applicants/). Certainly, this has raised issues related to the protection of personal information, the limits of transparency on the part of public administration, and the rights of citizens and their involvement in the creation of more efficient cities. An example of this is seen in the project “Open311 Chicago City Services” (http://www.cityofchicago.org/city/en/depts/311.html), a system that allows citizens to send in photographs of all classes of incidents detected throughout the city and allows them to track the status of the solution of the incidents reported in real time.
All these projects require a technological discourse and a political discourse, but are not viable without a legal discourse. For that reason, I would assert the role of law and the necessity of involving legal advisors, especially in the public sector, in any “smart” project that wants to flourish from its inception, as well as in forums where different models of “smart” cities are analyzed, in the interest of a more efficient implementation of these projects in the legal realm as well.
by Carme Briera Dalmau
Lawyer for Clifford Chance, Associate Professor od the Department of Administrative Law University of Barcelona