From an efficiency perspective, it would be ideal to have technology neutral legislation. The speedy pace of technological advancement is simply not aligned with the much slower speed of legislative reform. There is a significant amount of turbulence in technology and innovation. However, the extent to which legislation can stay away from technologies is heavily dependent on its ability to provide sustainable legal certainty. This causes a tension with respect to solving a significant issue in technology, which is the urgency with which legal problems should be resolved. The impacts of a data breach, for example, are immediate and significant. This means that should a smart clothing consumer suffer a data breach, there must be accurate and applicable regulations in place to determine the correct course of action for relief.

Given this binary dilemma, it seems that a balance of both sides provides the most comprehensive answer. That is, while regulations should be technology neutral, they, at the same time, must be multi-leveled, with open-ended formulations, and offer a mix of both abstract and concrete rules. Furthermore, such regulations must be periodically reviewed to ensure relevancy and test the scope of the rules to govern advancements and innovations in the foreseeable future at the time of each review. The speed of technology, coupled with its serious security and privacy implications, demand no less.

For example, inventors of smart clothing in the United States are serious issues in their pursuit to navigate through the legal hurdles with respect to their products, simply because the law is not aligned with the advancement of technology. Data management, for instance, has not yet been properly regulated to correspond to such technologies. Regulatory approvals also pose a significant problem for device manufacturers and researchers since consent from the FDA (or a similar body) may take several years. This further prolongs getting approval and certification from insurance companies for products like smart clothing. Furthermore, forthcoming technologies, such as electronics miniaturization and new biocompatible materials will need to be considered through a regulatory lens for various legal concerns, such as consumer safety and environmental impacts.

That being said, the strategy posed in the next instalment of this series should be immediately applied to the privacy laws in Canada given their . Furthermore, such reform should not take the traditional form, as consumer and user input is highly important in order to keep the regulations relevant and direct. In this way, the regulatory structure would not only be effective, but it would also have a “coherent moral centre that the public can comprehend and accept”, according to Professor David Vaver in his well-known intellectual properly textbook. This new method of a reform strategy is outlined in more detail below.

This is the fourth post in the Toronto Wearables Series by Saba Samanian regarding wearable technology and its IP and privacy law implications. Saba was recently appointed the Toronto Ambassador for and seeks to do her part in fostering the wearables community in Toronto.

Written by Saba Samanian, IPilogue Editor and JD Candidate at Osgoode Hall Law School.

The post A Possible Legal Response to the Rise of Smart Clothing appeared first on IPOsgoode.

Smart clothing offers a wide range of benefits. For example, athletes are now able to wear clothing during training that monitor a variety of helpful metrics cadence, ground contact time, pelvic rotation, and stride length. This results in a more efficient training routine since athletes can entrust their smart clothing with accurate monitoring, which allows them to solely focus on their activities. Similar benefits apply to non-athletes, too. created the Commuter Trucker Jacket, which is connected to Google’s Project Jacquard Platform. This allows users to access music, GPS, and calling applications on their mobile devices without actually touching their telephones. Another company has created a that uses Artificial Intelligence to protect its user from UV protection by notifying the user when she has been in the sun for too long. Furthermore, smart clothing now presents a solution for the segments of the population who need close medical monitoring, but cannot do so on their own, such as the . As a result, the benefits span from convenience to safety. Additionally, there is also a reduction in healthcare costs because of efficient and affordable wearables.

While both technology and fashion enthusiasts may be justifiably excited at the prospect of these innovations, there is also room for concern. Given the recent changes in fashion and the fact that technology is quickly getting to a point where it can evade all of our personal data by getting it directly from our bodies, privacy laws and implications must be considered. This also raises the question of how data collection from smart clothing is, in fact, different from data collection from another technological medium. Are new or revised regulations even necessary, or should the privacy concern be a technology-neutral one? Furthermore, how does smart clothing fit with the consent and information collection and analysis (i.e. data mining) requirements under ? Indeed, these questions have not yet been thoroughly researched and written about, which presents a ripe area for analysis.

However, before diving into a proposed approach to implement an effective solution to resolve the tension between privacy and smart clothing, it is worthwhile to consider its scope. While, a successful solution does not necessarily mean reinventing the wheel, certain regulatory adjustments need to be made given the high speed of technology and the unique invention of smart clothing. The key questions, therefore, are: should regulations surrounding smart clothing be technology neutral? What is the difference between smart clothing and smart phones? The next instalment in the series will focus on this.

This is the third post in the Toronto Wearables Series by Saba Samanian regarding wearable technology and its IP and privacy law implications.�� Saba was recently appointed the Toronto Ambassador for and seeks to do her part in fostering the wearables community in Toronto.

Written by Saba Samanian, IPilogue Editor and JD Candidate at Osgoode Hall Law School.

The post The (Un)Controllable Rise of Smart Clothing appeared first on IPOsgoode.

The with smart clothing is that the articles are constantly collecting, transmitting, and storing data, which means that they have information that is often considered personal, private, sensitive, or confidential. This makes smart clothing’s data mining abilities extremely strong. This is compounded by the fact that this information can easily be posted on social media networks, making it available to not only “friends” of the user, but possibly also to unknown or untrusted parties. Furthermore, wearables are able to collect information discreetly, otherwise known as data mining, which results in the users not actually knowing what data is being collected.  This often means that users underestimate their privacy risks. In fact, a recent study showed that there is “a significant gap between reported concerns and actual users’ behaviors, reinforcing that users often sacrifice their privacy in exchange of benefits.” Put simply, the non-invasive biomedical, biochemical, and physical measurements of wearables have invasive implications for a user’s privacy. However, given the novelty of smart clothing, the extent of the impacts of these privacy concerns has not yet been fully understood. It is for this reason that empirical studies are necessary.

The same study collected a variety of online comments from users of wearables. Based on the consumer feedback, the study concluded that the primary privacy concerns are linked to the type of personal data that a given wearable device collects, stores, processes and shares. For example, there is a lower level of concern regarding smart accessories that are seen as a gadget (e.g. Fitbits), versus smart clothing that covers a large part of the body. Furthermore, embedded sensors, such as cameras and microphones, pick up data about the user and even people nearby, often without their awareness or consent. The nature of this data is frequently personal and confidential, which implicates privacy issues, especially with respect to surveillance. Other functions of wearables, such as heart rate monitors, glucometers, and activity trackers, can also be intrusive.

Interestingly, even though users perceived wrist-mounted devices as a non-invasive accessory from a privacy perspective, the study found a high associated risk. Indeed, there have been findings of an increased feeling of safety and confidence due to the user’s dependence on this type of wearable to track both biomedical data as well as daily movements that assist the user, such as the user’s location when in an unknown area. The ability to track location seems appropriate because of the convenience of having GSP at the ready. However, the communication of a user’s location information, without the control of the user, poses a substantial threat because once location is sensed and stored, it can then be shared online, in real time, through live social media feeds. Yet, given an appearance that is akin to a watch or a bracelet, wearables’ presence is often unnoticed, which means that the underlying privacy risk is not seen as a concern on a daily basis. Rather, a user more acutely senses its convenience benefits. This is in stark contrast with the more common smartphone, with which the user has a more conscious interaction.

In fact, integration is of smart clothing, which allows users to synchronize their clothing with their phones for the sake of convenience. From a privacy perspective, however, this means that all of the implications associated with smartphones are then added to the list of concerns regarding smart clothing. For example, more technologically-advanced smart clothing inventions could have access to a user’s photos, contacts, bank information, and applications, making all of the data, in addition to the collected biometrics, vulnerable to being shared publicly. Another notable example is that embedded speech recognition applications in both smartphones and smart clothing allow the convenience of hands-free interaction. However, the heightened sensitivity that is needed to be able to pick up on such demands means that even when a user is not alone, a potentially confidential conversation between the user and another party can be captured and stored, once again without knowledge or consent.

The above suggests two concerning points about the privacy risk associated with smart clothing. First, users are already anxious about a host of privacy issues, but the (perhaps more noticeable) benefits offered by these devices causes them to become more willing to sacrifice their privacy. Second, even though users have articulated some concerns, these are often misdirected or underestimated. This means that users do not know precisely what to worry about, and are therefore ill-equipped to protect themselves. Indeed, new applications, such as facial recognition software embedded in smart technologies offer such a profound sense of convenience and marketable novelty that consumers willingly allow a device to repeatedly capture and store every inch of their face. This misplaced sense of trust in smart technologies, and particularly smart clothing, presents a significant barrier to technological advancement, as users’ engagement is difficult to predict.

This is the second post in the Toronto Wearables Series by Saba Samanian regarding wearable technology and its IP and privacy law implications.�� Saba was recently appointed the Toronto Ambassador for and seeks to do her part in fostering the wearables community in Toronto.

Written by Saba Samanian, IPilogue Editor and JD Candidate at Osgoode Hall Law School.

The post The Dark Side of Wearable Technology appeared first on IPOsgoode.

To support this activity, Toronto has seen a growth of organizations aiming to raise awareness regarding the conversation around wearable technology. , for example, is “a platform to connect innovators and leaders in the fashion and tech fields”, and hosts multiple meet-ups to facilitate this interaction. , which originally started as “a wearable technology runway show curated for the Maker Festival in Toronto” has now grown into an international brand and expanded to hosting speaking engagements, consulting, and creating public engagement through their considerable .�� also has an active Toronto chapter and has a mission to “foster adoption and facilitate innovation in wearable tech by providing a platform for the entrepreneurs, start-ups and organizations who are already making this happen and a place for those new to the space to be inspired to take action.”

As such, it is no surprise that Toronto start-ups have recognized the flourishing wearable technology community and have begun creating innovative designs in response. serves as a prime example. The Toronto-based start-up gave Team Canada’s freestyle skiers 30 pairs of Somnitude eyewear before the team went to PyeongChang for the 2018 Winter Olympics. The company recognized that athletes need a significant amount of rest in order to perform well; however, the common presence of blue light in daily lives (from phones and other screens) has the potential to significantly impact sleeping patterns. If the glasses are worn a few hours before bed, it helps supress melatonin, which is the hormone that induces sleep. Due to the delay that is caused by the suppression, there is a shift in the circadian phase of sleep to later in the night, which allows athletes (or others with similar lifestyles) to overcome jetlag much more quickly.

is another disruptive Toronto start-up, being the first wearable technology to actually identify users by their heartbeat. This identification allows their heartbeat to act as a passcode to connect to computers, phones, smart office technology, and possibly driverless cars in the future. Furthermore, the start-up partnered with MasterCard and is working on a method of completing a credit card transaction using the heartbeat indicator.

Of course, all of these applications have legal implications in relation to intellectual property and privacy and have to comply with related regulations. So, the question becomes, are our regulations well-equipped to deal with this new wave of technology, or do we need to think more critically about updates? The rest of the series on this topic is aimed at discussing this, and other related questions.

This is the first post in the Toronto Wearables Series by Saba Samanian regarding wearable technology and its IP and privacy law implications.�� Saba was recently appointed the Toronto Ambassador for Women of Wearables and seeks to do her part in fostering the wearables community in Toronto.

Written by Saba Samanian, IPilogue Editor and JD Candidate at Osgoode Hall Law School.

The post One of Wearable Technology’s Most Prominent Homes: Toronto appeared first on IPOsgoode.