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Reconceptualizing Spatial Privacy for the Internet of Everything E. Anne

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Reconceptualizing Spatial Privacy for the Internet of Everything E. Anne Reconceptualizing Spatial Privacy for the Internet of Everything E. Anne Uteck Thesis submitted to the Faculty of Graduate and Postdoctoral Studies in partial fulfillment of the requirements for a doctoral degree in Law Faculty of Law Common Law Section University of Ottawa © E. Anne Uteck, Ottawa, Canada, 2013 DEDICATION For Carole Lucock We began together, we shared it together, we finish together. This is our accomplishment my friend. ii ACKNOWLEDGEMENTS With the biggest and deepest love rushes and profound thanks to my children Spencer and Kate who bravely left their lives in Halifax to come with me to Ottawa on this crazy quest of mine to get a PhD. Being at the University of Ottawa Faculty of Law, and most especially the opportunity to be involved with the inter-disciplinary research project, ‘On the Identity Trail: Understanding the Importance and Impact of Anonymity and Authentication in a Networked Society’ has been an invaluable experience. Part of this experience was the opportunity to meet and work with two wonderful individuals and talented scholars, Jane Bailey and Val Steeves. They have enriched my life in Ottawa and provided an exemplary research standard to which we should all strive to attain. And they are, quite simply, just plain fun to be around. My heartfelt thanks to Teresa Scassa for her constant support and encouragement over the years in Halifax and in Ottawa – and regularly bringing perspective back into the life of a doctoral candidate. I could not have made it this far or accomplished what I have without Teresa Scassa. I have benefitted from her mentorship and value our friendship. I would also like to thank the external examiner, Dr. Gregory Hagen and all the committee members for participating in this process. I appreciate each of their thorough, insightful and thoughtful commentary. I also wish to acknowledge and express my thanks for the opportunities, support and assistance that I received in connection with this dissertation from Gowling LaFleur & Henderson LLP, the Social Sciences and Humanities Research Council, and the University of Ottawa. A special thank you to Florence Downing in the Graduate Studies Office at the University of Ottawa Law School who was always calm, efficient, kind, knowledgeable and abundantly helpful. And, especially, my very deepest and most sincere professional and personal thanks to my supervisor, Ian Kerr, for the guidance, assistance and encouragement he provided in spades throughout the project. I was so fortunate to have had the opportunity to work with Ian Kerr, a gifted, creative and inspiring individual and scholar. During the personal challenges in this journey, Ian Kerr gave me the strength, resolve and constant support to finish this project. Above all, working with Ian Kerr was a privilege and our friendship a joy. iii ABSTRACT Twenty years ago, a team of Silicon Valley researchers, led by computing scientist Mark Weiser, envisioned a world in which computing would become an integral part of our everyday experience. Today, this vision is being realized. As technologies are combined, integrated and connected to networks, we are moving to a society characterized by “ubiquitous computing” — a paradigm used to describe pervasive technological embeddedness; from things, to people, to places. Enabling technologies, such as Global Positioning Systems (GPS), Radio-Frequency Identification (RFID) and advanced wireless devices are being introduced and woven into the fabric of our daily lives. With these convergences emerges the unique ability to locate and track people and things anywhere, anytime—including real-time. There are compelling advantages to such an enhanced surveillance capability serving important public interests. Yet, bringing computing technologies beyond the desktop and into the everyday physical world more directly and more pervasively compromise the spaces and places of our lives, challenging our fundamental ideas about spatial boundaries and the privacy expectations that accompany them. This dissertation examines these issues with the aim of reconceptualizing spatial privacy so that it is capable of sustained, effective legal protection in a world of ubiquitous computing. Chapter One provides a detailed study of the technological landscape, highlighting three key characteristics of ubiquitous computing: (i) physicality, (ii) invisibility and (iii) context-awareness. Having examined what is considered the “next wave” of computing technology. Chapter Two explores the quantitative and qualitative changes in surveillance activity facilitated by ubiquitous computing. It identifies and discusses the emerging privacy implications raised by ubiquitous surveillance technologies, asserting the increasing importance of reconceiving spatial privacy as computing technology becomes physically embedded in the real world. Chapter Three examines the conceptual and legal privacy landscape, surveying leading privacy theories in order to articulate the array of underlying values and interests. This survey iv includes not only privacy scholarship but also privacy jurisprudence, principally as it has been developed under section 8 of the Canadian Charter of Rights and Freedoms. Central to this dissertation, this analysis demonstrates the extent to which current privacy law is not adequate to protect the spatial dimension of privacy. Addressing this deficit, Chapter Three calls for a reconceptualization of the traditional category of territorial privacy so that it is capable of sustaining effective legal protection. This conceptual reformation of spatial privacy begins in Chapter Four, which provides a multi-disciplinary investigation of the meaning of place. It adopts an experiential conception developed within the field of Humanistic Geography, better reflecting the spatiality and interactive nature of our everyday lives. Based on this foundation, a new conceptual construct of ‘peopled places’ is proposed in order to overcome the extent to which the law is currently constrained by its reliance on traditional geography and property concepts. Chapter Five develops the peopled places construct around four defining features: (i) embodiment; (ii) contextual dimensions; (iii) mobile interactions; and (iv) boundary management. Having built an alternative conceptual apparatus, Chapter Five provides legal examples that illustrate how the peopled places construct will better accommodate privacy interests in an environment of pervasive computing. By promulgating an approach that demands spaces to be understood not as empty vessels but as peopled places, this dissertation affirms, clarifies and elaborates the Supreme Court of Canada’s long standing intention to remedy the trespass theory of privacy by linking section 8 of the Charter to the protection of “people not places”. v TABLE OF CONTENTS Dedication ........................................................................................................................................... ii Acknowledgements ..................................................................................................................... iii Abstract ............................................................................................................................................... iv Table Of Contents .......................................................................................................................... vi Introduction ...................................................................................................................................... 1 Chapter One The Technology Landscape ................................................................................................... 22 1. Introduction .......................................................................................................................... 22 2. Re-Visiting The Vision ...................................................................................................... 27 2.1. What Is Ubiquitous Computing? ................................................................... 27 2.2. Salient Features Of Ubiquitous Computing .............................................. 30 2.2.1 Physicality ................................................................................................... 30 Mobility ......................................................................................................... 33 Augmented Reality ................................................................................... 37 Hybridization .............................................................................................. 39 Embodied Interaction ............................................................................. 44 2.2.2 Invisibility ................................................................................................. 48 2.2.3. Context-Awareness .............................................................................. 57 Ambient Intelligence (Ami) ................................................................... 60 2.3 Ubiquitous Computing: Are We There Yet? .............................................. 64 3. Conclusion ............................................................................................................................. 67 Chapter Two Surveillance And Privacy Implications Of Ubiquitous Computing .................. 70 1. Introduction .......................................................................................................................... 70 2. What
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