A Possible Legal Response to the Rise of Smart Clothing

In the third instalment of the Toronto Wearables Series, I began to discuss a possible path forward in the regulation of smart clothing. The rise of new ideas and innovations have a tendency to create the illusion that a regulatory scheme is needed in order to capture and govern such inventions. However, it is important to question whether sui generis regulation is necessary, or whether regulations should be technology neutral. The implication of the latter would be that recent innovations like smart clothing should be able to neatly fit within the boundaries of the regulations currently in place for similar products.

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 concrete 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 presently facing 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 notable need for an update. 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 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.

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