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Noto La Diega, Guido (2017)
Publisher: National Law School of India University
Languages: English
Types: Article
Subjects: M100, M200
This article is a useful tool for both Asian and European readers as regards some of the state-of-the-art technologies revolving around the Internet of Things (‘IoT’) and their intersection with cloud computing (the Clouds of Things, ‘CoT’) in both the continents. The main legal issues will be presented, with a focus on intellectual property, consumer protection, and privacy. India and the United Kingdom are selected because they are at the forefront of the IoT innovation in their respective countries. The IoT is an expanding and heterogeneous universe encompassing all Things which are capable of connectivity and are equipped with sensing and actuating capabilities. One can find Things in very diverse sectors, from agriculture to manufacturing, retail, healthcare, leisure, domotics, urban development, etc. Therefore, not only is providing an exhaustive and static definition of the IoT nearly impossible (or at least pointless), but also the endeavour of providing a complete picture of the phenomenon would be a cumbersome path towards failure. Consequently, I will give account only of the highlights of the IoT in India and the United Kingdom. In India, the IoT will be analysed through the prism of net neutrality, smart cities, manufacturing, computer-related inventions, and a recent bill on the surveillance aspects of the world’s largest biometric database (Aadhaar). In turn, I will look at the British context by analysing some (quasi) regulatory acts with a focus on privacy and consumer protection. One last caveat. When it comes to new technologies, one tends to be either ‘apocalyptic’ or ‘integrated’. Either the technology will save us all by leveraging a revolution leading to a disruptive innovation, or it will destroy our lives and the world will go to the dogs. I take a middle position and believe that through education, collective awareness, and soft law, one will be able to keep the human being at the centre of innovation, to unite people rather than divide them, to empower them and alleviate discrimination and poverty. What is important is neither should one delegate to technology nor to rely entirely on government: if the IoT is to actually become a revolution, it will do so due to the commitment of each and every one of us who will contribute to create the Internet of Citizens.
  • The results below are discovered through our pilot algorithms. Let us know how we are doing!

    • 8 O Lopez-Fernandez et a,lPrevalence of problematic mobile phone use in British adolescents, 17(2) Cyberpsychology Behaviour and Social Network, 91-98 (2014) available at doi:10.1089/cyber.2012.0260.
    • 9 Pedrero Pérez EJ et ,alMobile phone abuse or addiction: A review of the literature, 24 Adicciones 139-152 (2012).
    • 10 According to the U.S. Director of National Intelligence, James Clapper, Things in homes are new opportunities for spying. RSeecord Worldwide Threat Assessment of the US Intelligence Community Senate Armed Services Committee (February 6, 2016) (statement of James Clapper), available athttp://www.armed-services.senate.gov/imo/media/doc/ Clapper_02-09-16.pdf.
    • 12 Under art. 5(3) of the Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protec-tion of pri vacy in the electronic communications sector ('e-Privacy directive'), “the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data cont.rAorltliecrl.”e.2C9f Working Party, Opinion 4/2012 on Cookie Consent Exemption (June 7, 2012), availablhetattp:// ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/ ifles/2012/wp194_en.pdf, and Article 29 Working Party, Working Document 02/2013 providing guidance on obtaining consent for cookies (October a2v,a2i0la1b3l)e, at http:// ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/ ifles/2013/wp208_en.pdf. The Article 29 Working Party can be broadly considered as the European regulator of data protection.
    • 13 Cf., e.g., Vidal-Hall v. Google Inc., 2014 EWHC 13 (QB), about the distress suffered by users of Apple Things from learning that their personal characteristics formed the basis for Google's targeted advertisements and from having learnt that such matters might have come to the knowledge of third parties who had used or seen their Things. The claimants used Apple's Safari browser, which was set to block Third Party Cookies that-would ena ble the tracking and collation of browser activity. They pleaded that a Safari workaround operated by Google allowed it to obtain and record information about their Internet use and use it for the purposes of its AdSense advertising service. The High Court, Queen's Bench Division held, among other things, that 'damage' under the Data Protection Act 1998 need not necessarily have an economic aspect.
    • 14 FCC, Chairman Wheeler's Proposal to Give Broadband Consumers Increased Choice, Transparency & Security with Respect to Their Data (March 10, 2016), available at https://www.fcc.gov/document/broadband-consumer-privacy-proposal-fact-sheet.
    • 15 First of all, do the users have the actual possibility of dissenting? Do they understand what they are consenting to? Are there not other justifications for the processing of personal data? Should we not be more realistic? The answers to these questions should be the basis of future research.
    • 16 See, e.g., Article 29 Working Party, Opinion 9/2014 on the application of Directive 2002/58/EC to device fingerprinting (November 25, 2014), availablehatttp://ec.europa. eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/ wp224_en.pdf.
    • 17 On the use of high-frequency sounds to covertly track across a range of Cdhevriicses, see Calabreseet al, Comments for November 2015 Workshop on Cross-Device Tracking, Letter from the Center for Democracy & Technology to the Federal Trade Commission (October 16, 2015), available athttps://cdt.org/files/2015/10/10.16.15-CDT-Cross--De vice-Comments.pdf.
    • 22 On February 2, 2016, the EU and the US agreed on a new framework for transatlantic data flows: the EU-US Privacy Shield. The College of Commissioners has mandated VicePresident Ansip and Commissioner Jourová to prepare a draft adequacy decision, which should be adopted by the College after obtaining the advice of the Article 29 Working Party and after consulting a committee composed of representatives of the Member States. In the meantime, the U.S. side will make the necessary preparations to put in place the new framework, monitoring mechanisms and the new Ombudsman. The draft adequacy decision a(vailable at http://ec.europa.eu/justice/data-protection/files/privacy-shi-eld-ade quacy-decision_en.pdf) and the text of the Privacy aSvhaiielladbl(e at http://ec.europa.eu/ justice/data-protection/files/privacy-shield-adequacy-decision-annex-2_en.pdf) have been presented on February 29, 2016.
    • 23 Reportedly, in March 2016, the US Department of Justice had been discussing h-ow to pro ceed in a criminal investigation in which a federal judge had approved a wireta-p, but inves tigators were stymied by WhatsApp's encryptionM. .SeAepuzzo, WhatsApp Encryption Said to Stymie Wiretap Order, The New York Times (March 12, 2016), available at http://www.nytimes.com/2016/03/13/us/politics/whatsapp-encryption-said-to-stymiewiretap-order.html?smid=pl-share.
    • 24 'Personally identifiable information' is the American equivalent of the European 'personal data.'
    • 40 On November 25, 2015, the Comitato permanente per i servizi di comunicazione Machine to Machine (permanent committee for M2M communication services) was launched. Its members are the Autorità Garante delle Comunicazi o(AnGiCOM, the communications regulator), the Autorità per l'energia elettrica, il gas e il sistema idrico (electricity, gas, water authority), the Autorità di Regolamentazione dei Tra(stproarnti-s port authority), the Agenzia per l'Italia Digit(aalegency for the digital agenda) and the Ministero dello Sviluppo Economico (Ministry of Economic Development).ASGeeCOM, Delibera n. 459/15/CONS, available ahtttp://www.agcom.it/documents/10179/2409164/ Delibera+459-15-CONS/6c9ac9f2-e46f-4df6-9f25-66205d6b7620?version=1.0.
    • 41 The GCSA is the personal adviser to the Prime Minister and the Cabinet on science and technology-related activities and policies.
    • 42 GCSA, The Internet of Things: making the most of the Second Digital Revolution, 9 (December 18, 2014) (also known as the Blackett Revi)e. w
    • 43 Id, at 9.
    • 44 Id.
    • 45 C. Reed & D. Stafanat o,uLegal and Regulatory update - embedding accountability in the international legal framework (forthcoming). Thanks to the Authors for sending the manuscript.
    • 46 'Clouds of Things' has been the object ofndtahnen2ual Symposium of the Microsoft Cloud Computing Research Centre, held in Windsor from October 26-27, 20a1l5s.oStehee works of the CoT conferences http://cloudofthings.org/ and also the Cloud o-f Things plat form, which enables businesses to develop self-branded IoT solutions (it delivers software development kits (SDKs) for endpoint devices, an insight-driven big-data cloud backend and an engine that automatically generates source-code for mobile control applications (available at https://www.cloudofthings.com/welcome/). Even when I will refer to the IoT and unless otherwise specified, it is understood that I refer to the Clouds of Things.
    • 47 Hon et al., supra note 29, at 7.
    • 48 I agree with A. Botta et al., On the Integration of Cloud Computing and Internet of Things, 2014 International Conference on Future Internet of Things and Cloud (FiCloud), 23 (Barcelona, August 27-29, 2014), that the literature focuses on IoT and c-loud sepa rately, whilst one ought to clarify the integration of those technologies (which they ca 'CloudIoT') that is the basis for new challenges and issues.
    • 49 R.H. Weber-R. Weber, Internet of Things: Legal Perspective,s17 (Springer, HeidelbergDordrecht-London-New York, 2010).
    • 50 Internet of Things: Science Fiction or Business Fact? Harvard Business Review Services, Report 1 2014, where the factor is read jointly with the rapid proliferation of connectivity and miniaturization of sensors and communications chips.
    • 51 Cf. M. Aazam et al, Cloud of Things: Integrating Internet of Things and cloud computing and the issues involved, (Proceedings of the 2014th1I1nternational Bhurban Conference on Applied Sciences & Technology (IBCAST) 414 (Islamabad, Pakistan, January 14-18, 2014)), where it is observed that the IoT is 'becoming so pervasive that it is becoming important to integrate it with cloud computing because of the amount of data IoTs could generate and their requirement to have the privilege of virtual resources utilization and storage capacity, but also, to make it possible to create more usefulness from -the data gen erated by IoTs and develop smart applications for the users.'
    • 52 For instance, without the cloud, an analysis of data collected by multiple sen-sors and mul tiple Things would hardly be feasible.
    • 53 Cf. L. Atzori et al., The Social Internet of Things (SIoT) - When social networks meet the Internet of Things: Concept, architecture and network characterization, 56 Computer Networks 3594 (2012) and P. Deshpande et.,aMl4M: A model for enabling social network based sharing in the Internet of Things, in 7th International Conference on Communication Systems and Networks (COMSNETS) (Bangalore, India, January 6-10, 2015), IEEE Proceedings, 2015. For the basic concepts of the social Internet of Things, see http://www.social-iot.org/.
    • 54 One example of this conflation is the so-called cloud manufacturing, i.e., “a -new direc tion for manufacturers to innovate and collaborate across the value chain via cloud-base technologies” (Y.-K. Lu-C.-Y. Liu-B.-C. Ju, Cloud Manufacturing Collaboration: An Initial Exploration, 2012 Third World Congress on Software Engineering, Wuhan 163 (November 6-8, 2012)).
    • 55 Along with availability, elasticity, and improved resource u, tmiluilstaittieonnancy is an intrinsic characteristic of cloud computing according to Advances in Clouds. Research in Future Cloud Computing, Commission of the European Communities, Information Society & Media Directorate-General, Software & Service Architectures, Infrastructures and Engineering Unit, edited by L. Schubert & K. Jeffery, 12 (2012), availahbtltepa:t// cordis.europa.eu/fp7/ict/ssai/docs/future-cc-2may-finalreport-experts.pdf, but it is all the more important also for the IoT.
    • 56 The work of Y. Benazzouz et al., Sharing User IoT devices in the Clo, uIdEEE World Forum on Internet of Things (WF-IoT) 373 (2014), is interesting, where they propose an IoT centric social device network based on a cloud computing model precisely because it provides a virtual execution environment thanks to its decentralized nature,-high reliabil ity and accessibility from anywhere and at any time.
    • 57 Cf. http://unikernel.org/.
    • 58 According to S. Bouzefrane et al., Cloudlets Authentication in NFC-Based Mobile Computing, in 2nd IEEE International Conference on Mobile Cloud Computing, Services, and Engineering (MobileCloud) 268-269 (April 8-11, 2014), it is a “multicore computer installed in the public infrastructure with connectivity to remote cloud servers. Hence, the cloudlet is used by the mobile device to offload its workload while ensuring low delay and high bandwidth.” The term was coined by M. Satyanarayanan et al., The case for VM-based cloudlets in mobile computing, 8 IEEE Pervasive Computing 14-23 (2009). Recent studies focus on the use of cloudlets (or edge computing) fosreet,hfeorIoT ( instance, M. Satyanarayaneatnal, Edge Analytics in the Internet of Things, 14(2) IEEE Pervasive Computing 24-31 (April-June 2015), which describes the GigaSight ar-chitec ture, a federated system of VM-based cloudlets that perform video analytics at the edge of the Internet, thus reducing the demand for ingress bandwidth into the cloud).
    • 59 The term was coined in 2012 by researchers of Cisco; especially F. Bonomi et al Fog Computing and Its Role in the Internet of Things, available at http://conferences.sigcomm. org/sigcomm/2012/paper/mcc/p13.pdf, according to whFiocghC“omputing extends the Cloud Computing paradigm to the edge of the network, thus enabling a new breed of applications and services. Defining characteristics of the Fog are: a) Low latency and location awareness; b) Wide-spread geographical distribution; c) Mobility; d) Very large number of nodes; e) Predominant role of wireless access; f) Strong presence of streaming and real time applications; g) Heterogeneity.” More recently, S. Sarkar et al., Assessment of the Suitability of Fog Computing in the Context of Internet of Things, in PP(99) IEEE Transactions on Cloud Computing 1 (October 1, 2015). As the number of ap-pli cations demanding real-time service increases, the fog computing paradigm outperforms traditional cloud computing (the overall service latency for fog computing decreases by 50:09%). Therefore, in the context of IoT, with high number of latency-sensit-ive applica tions, fog computing is better than traditional cloud technologies.
    • 60 With the personal cloud, there is a shift from a Thing-centric mobile cloud computing, to a user-centric cloud computing experience where users are able to access their digital assets and services via apps across multiple Things in a seamless manner (A. K,azi et al. Supporting the personal cloud, in 2012 IEEE Asia Pacific Cloud Computing Congress (APCloudCC) 25-30 (November 14-17, 2012)).
    • 61 Along with the conferences cited sub note ,2e3.,g.s,etehe works of the three conferences 'Future Internet of Things and Cloud (FiClaovuadil)a' b(le at http://www.ficloud.org).
    • 62 As one can read on the website http://clout-project.eu/,,the overall concept of ClouT is leveraging cloud computing as an enabler to bridge the IoT with the Internet of People via the Internet of Services, to establish an efficient communication and collabo-ration plat form exploiting all possible information sources to make the cities “smarter” and to help them face emerging challenges such as efficient energy management, economic growth and developmentse(e also https://vimeo.com/112706883).
    • 63 We refer essentially to P. Wright & A. Manieri, Internet of Things in the Cloud. Theory and Practice, CLOSER 2014, 4th International Conference on Cloud Computing and Services Science (Barcelona, April 3-5, 2014).
    • 64 IEEE Internet of Things Journal Special Issue on Cloud Computing for IoT.
    • 65 By 'cloud' here we mean the use of cloud computing in itself, and not as a mediator of IoT communication. It is clear that if the cloud is controlling Things - either directly throug commands, or indirectly describing 'events' that real-world things act on - 'hacking the cloud' can cause real-world security issues.
    • 66 GCSA (42) refers to two examples: a cyber-attack that allowed one to control steering and braking of a car and a hacker shouting at a sleeping child using a baby monitor. There are, however, many other examples:,se.eg., http://www.theregister.co.uk/2015/02/11/a-non ymous_hacks_fuel_station_monitoring_system/ about petrol stations. While we wait for general guidelines on cybersecurity, ENISA, the European Union Agency for Network and Information Security, has recently published a study that aims at securing domo- tics environ ments from cyber threats by highlighting good practices that apply to every s-tep of a prod uct lifecycle. SEeNeISA, Security and Resilience of Smart Home Environments, December 1, 2015, available at https://www.enisa.europa.eu/activities/Resilience-and-CIIP/smartinfrastructures/smart-homes/security-resilience-good-practices.
    • 67 J. Singh, et al., Twenty Security Considerations for Cloud-Supported Internet of Thing,s PP (99) IEEE Internet of Things Journal 1, pp. 1-15 (2015).
    • 68 See, for instance, K. Kreuzer, Eclipse Technologies for the Internet of Things and the Smart Home (May 12, 2013), available at http://kaikreuzer.blogspot.co.uk/2013/05/eclipse--tech nologies-for-internet-of.html,, where, apropos what he calls cloudy things, he stresses that “these gadgets are connected to the Internet, but effectively they are totally disconnecte from each other.” (though his tripartition of the IoT into M2M, cloudy things and Intranet
    • 74 Noto La Diega & Walden, supra note 30.
    • 111 Office of the Controller General of Patents, Designs and Trade marks, Guidelines for Examination of Computer Related Inventions (CRIs), February 19, 2016,available at http://www.ipindia.nic.in/iponew/GuidelinesExamination_CRI_19February2016.pdf. The first version was issued on August 21, 2015 and is still available at http://www. ipindia.nic.in/iponew/CRI_Guidelines_21August2015.pdf.
    • 112 Even before that, the definition of 'computer' is sufficiently flexible to accommodate the IoT specific characteristics. The term 'computer' is defined in The Information Technology Act, 2000 as “any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, proc-essing, stor age, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network.”
    • 113 Concerns over the “Guidelines for Examination of Computer Related Inventions (CRIs)” issued on August 21, 2015 (September 15, 2015), available athttp://sflc.in/wp-content/ uploads/2015/09/Letter_CRIGuidelines2015-Prime-Minister.pdf. I will not analyse the latter claim, also because it appears rhetoric and unsubstantiated and will open a Pandora's box of potential harm to the Indian industry. Such a step will invariably stifle innovation.
    • 118 Office of Controller General of Patents, Designs & Trademarks, Manual of Patent Office Practice and Procedure, v. 1(11) (March 22, 2011), 08.03.05.10, available athttp://ipi ndia.gov.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20 Office%20Practice%20and%20Procedure%20-%20pdf/Manual%20of%20Patent%20 Office%20Practice%20and%20Procedure.pdf.
    • 119 On June 28, 2013, the Controller published the draft guidance, avahiltatbple://aitpindia. nic.in/iponew/draft_Guidelines_CRIs_28June2013.pdf.
    • 120 Office of Controller General of Patents, Designs & Trademarks, order n. 70 of 2015 (December 14, 2015), available athttp://ipindia.nic.in/officeCircular/officeOrder_1-4De cember2015.pdf.
    • 121 Alongside the above-cited text,Osfeficee of Controller General of Patents, Designs & Trademarks, order n. 11 of 2016 (February 19, 20a1v6a)i,lable at http://www.ipindia.nic. in/iponew/OfficeOrder_CRI_19February2016.pdf.
    • 125 The bifactorial authentication will be increasingly insufficient. For instance, a malware hitting Android phones can intercept incoming SMS text messages, thus allowing one to steal the One-Time Passwords (OTPs) often sent by banks as a form of two-fact-or authen ticationS.ee ABS, Consumer advisory on malware targeting mobile banking (December 1, 2015), available at http://www.abs.org.sg/pdfs/Newsroom/PressReleases/2015/ MediaRelease_20151201.pdfC.f. Kennedy et al., Data Security and Multi-Factor Authentication: Analysis of Requirements Under EU Law and in Selected EU Member States, Queen Mary School of Law Legal Studies Research Paper No. 194/2015 (April 30, 2015), available at SSRN: http://ssrn.com/abstract=2600795.
    • 126 The National Identification Authority of India Bill, 2010 had been passed to pr-ovide leg islative backing to the UIDAI, but it had been withdrawn when the here-analysed bill was introduced.
    • 127 The data can be found in S. Miglani & M. Kumar, India's billion-member biometric-data base raises privacy fears, March 16, 2016, available at http://www.reuters.com/article/ us-india-biometrics-idUSKCN0WI14E. They report inter alia that the bill “has been showcased as a tool exclusively meant for disbursement of subsidies and we do not realize that it can also be used for mass surveillance,” (Tathagata Satpathy, a lawmaker from the eastern state of Odisha).
    • 128 Introduced by the Minister of Finance, Mr. Arun Jaitley, in the Lok Sabha on March 3, 2016, the bill was passed on March 11, 2016 in the Lok Sabha and on March 16, 2016 in the Rajya Sabha. The President's assent is currently pending.
    • 129 If the collection is unprecedented, the passing of legislation on surveillance in India is not See, for instance, the Indian Telegraph Act (1885), which allows national security agencies and tax authorities to eavesdrop on conversations of individuals for public safety reasons.
    • 130 On the right to privacy in Indi,afsoeer instance, CRID University of Namur, First Analysis of the Personal Data protection Law in India. Final Report, available at http://ec.europa. eu/justice/data-protection/document/studies/files/final_report_india_en.pdf.
    • 131 The reference text (as passed) can be found at http://www.prsindia.org/uploads/media/ AADHAAR/Aadhaar%20bill%20as%20passed%20by%20LS.pdf. The original bill is available at http://www.prsindia.org/administrator/uploads/media/AADHAAR/ Aadhaar%20Bill,%202016.pdf; a summary at http://www.prsindia.org/uploads/media/ AADHAAR/Bill%20Summary-%20Aadhaar%20Bill.pdf; the issues for co-nsidera tion at http://www.prsindia.org/uploads/media/AADHAAR/Aadhaar%20Bill%20 Issues%20for%20Consideration%20%2008.03.16.pdf; and the comparison between the 2010 bill and the 2016 one at http://www.prsindia.org/uploads/media/AADHAAR/ Comparison%20of%202010%20and%202016%20Aadhaar%20Bills.pdf.
    • 132 K.S. Puttaswamy v. Union of India, (2014) 6 SCC 433, (2015) 8 SCC 735, (2015) 10 SCC 92.
    • 133 Aegis Systems Ltd-Machina Research, M2M application characteristics and their im-pli cations for spectrum. Final report, 2606/OM2M/FR/V2 (May 13, 2014), available at http://stakeholders.ofcom.org.uk/binaries/research/technology-research/2014/M2M_ FinalReportApril2014.pdf. The report has been commissioned by Ofcom.
    • 134 See Department of Energy and Climate Change, Smart meters: a guide (January 22, 2013) (last updated October 8, 2013), availablehatttps://www.gov.uk/guidance/smartmeters-how-they-work. The number is potential, given the opt-in system chosen by the Government.See also Department of Energy & Climate Change-Ofgem (Office of Gas and Electricity Markets, UK regulator of energy), Smart meters: information fo-r indus try and other stakeholders (January 22, 2013),available at https://www.gov.uk/guidance/ smart-meters-information-for-industry-and-other-stakeholders.
    • 146 B. Hayes & C. Jone,s Report on how the EU assesses the impact, legitimacy and effectiveness of its counterterrorism laws, Statewatch SECILE report 28 (December 2013), available at http://www.statewatch.org/news/2013/dec/secile-how-does-the-EU-assessits-counter-terrorism-law.pdf; they recognise, among others, that “much greater weight appears to have been ascribed to the needs and assessments of law enforcemen-t and secu rity agencies than the other stakeholders”.
    • 147 Cf. F. Rao & J. Tan, Energy consumption research of AES encryption algorithm in ZigBee, in International Conference on Cyberspace Technology (CCT 2014) 1-6 (Beijing, November 8-10, 2014), demonstrate the fact that the improved AES algorithm can not only reduce the code size, but also reduce the overall energy consumption of ZigBee networks.
    • 148 See supra note 125.
    • 149 K. Olmstead & M. Atkinson, Apps Permissions in the Google Play Store (November 10, 2015), available at http://www.pewinternet.org/2015/11/10/apps-permissionsin-the-google-play-store/.
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