Liveblogging Sidewalk Labs’ Master Innovation and Development Plan, Bonus Entry 4: Follow the regs, not the tech

Previous Master Innovation and Development Plan liveblog entries and key available here

In making my way through Sidewalk Labs’ Master Innovation and Development Plan (first actual MIDP post arriving tomorrow! Tell your friends.), I’ve started wondering why Sidewalk Labs needs all of these changes to existing laws and new institutions that it’s asking for.

The pitch has always been that the Quayside development offers the opportunity to build a community from scratch, “from the Internet up,” as Sidewalk Labs used to say before people realized that tech companies don’t necessarily have their best interests at heart. Working from scratch would allow Sidewalk Labs (and other companies) to develop and test new tech that it could then sell to other cities.

But it’s hardly realistic to assume that urban tech – including that developed in partnership with Sidewalk Labs – would be deployed elsewhere on a blank slate. It would, one assumes, be deployed in cities with their own laws, idiosyncrasies and existing infrastructure. From this perspective, how suitable would blank-slate tech be for other cities?

Technology exists in particular social, political and regulatory milieus. Understanding this point, I think, helps us better understand what Sidewalk Labs is up to in Toronto.

Sidewalk Labs is not just (or perhaps mainly) interested in developing specific technologies, which would then have to be adapted to other cities’ particular needs, or not be adopted at all.

Rather than traditional technology, Sidewalk Labs is working to create and develop an off-the-shelf social-norms, regulatory and standards framework that aligns with the technologies and services that companies like Google would then sell to those cities that adopt its framework. They’re as much (if not more) a service provide than a tech manufacturer or software developer.

In other words, Sidewalk Labs isn’t a tech company; it’s Google’s Division of Urban Policy.

It seems to me that for Sidewalk Labs, the Toronto Smart City project is not primarily about developing technology to fit other cities needs. It’s about developing standards and norms that will redefine other cities’ norms about what they want to ensure that their perspectives coincide with those of Sidewalk Labs and Google.

It’s about getting cities to adapt to a particular technological vision of the world, rather than adapting technology to what citizens have determined they want and need, as set out in their laws and norms. It’s about the law adapting to fit a particular technology (which embodies a particular view of the world), rather than technology adapting to fit the (democratically enacted) law.

In short, if you want to understand Sidewalk Labs and its Toronto project, focus on the regulations and standards, not the tech.

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Liveblogging Sidewalk Labs’ Master Innovation and Development Plan, Entry 8: The Plan Development Agreement’s digital governance framework; Sidewalk Labs’ Digital Governance Proposals for DSAP Consultations

Previous Master Innovation and Development Plan liveblog entries and relevant documents available here

Last year I decided it would be fun to read Stephen King’s entire Dark Tower series for the first time.

King and Dark Tower fans know that to get the most out of the seven proper Dark Tower novels, you need to read a bunch of King’s other books, which are only quasi-related to the main series. In a particular order. Being a completionist, getting to Book II meant that I had to first read The Eyes of the Dragon (fun!), the short story “The Little Sisters of Eluria” (diverting!), and, um, The Stand. Which, as most people know, is a fantastic read, but also So. Very. Long.

In other words, it was a lot of reading just to get back to the main event. Enjoyable? Most definitely. Worthwhile in the end? Yes. But a long way to go nonetheless.

All of this to say that this is my final, throat-clearing post before I actually start reading the actual Master Innovation and Development Plan. And while these reports share only an alphabet in common with King, I hope that reading them will illuminate our final destination in much the same way that my pre-Drawing of the Three reading did the subsequent Dark Tower books.

Anyways, on to the issues at hand. In this post I’ll be covering the digital aspects of the pre-MIDP Sidewalk Labs and Waterfront Toronto output. First, a quick summary of Schedule I of the Plan Development Agreement, “Digital Governance Framework Principles.” I’ve focused on more concrete deliverables rather than fuzzy statements of intent on the assumption that the former are more easily trackable than the latter, which could be fulfilled by doing almost anything. These will give me a yardstick with which I can evaluate the final agreement.

There is a lot of wiggle room in these principles. For example, claims that they will only collect, use, retain and disclose data “necessary for the provision of the services and [the benefit of] individuals” could also be rephrased by saying that they will collect, use, retain and disclose any data needed to provide these services. As always, the devil will be in the details.

Other than that, for the moment I’ll note that they have a strong bias toward using transparency and informed consent to ensure that peoples’ data rights are protected. They also claim to favour “Meaningful … opt-out provisions.” Reconciling the ubiquitous surveillance proposed in all previous with such an opt-out would be a neat trick.

Then, I’ll highlight some important points from Sidewalk Labs’ October 2018 “Digital Governance Proposals for DSAP Consultation,” a 41-page PowerPoint presentation that stands as its most thorough (to that date) public statement on how it thought data should be governed.

Part I: The Digital Governance Framework Principles

  • They will follow the laws of the country. (um, huzzah?)
  • Identification and assess “with respect to risk to human or democratic rights” “any form of surveillance of individuals,” and will be “remedied where necessary.” (Schedule G, Article 1) (see: devil, details)
  • Identifies an individual’s “rights to access and review their data”
  • Commits to the transparent “collection, use, retention and disclosure of personal data”
  • Will only collect, use, retain and disclose data “necessary for the provision of the services and [the benefit of] individuals.” Another way of saying this, however, is that they will collect, use, retain and disclose any data needed to provide these services.
  • Will use de-identification and other technologies “to ensure privacy is protected”
  • Based on “informed consent”
  • “Meaningful … opt-out provisions”

Note: This approach places significant responsibility on the individual: The company provides all the information (transparency), and it will be up to the individual to know and understand enough about what data is, how it is collected, and how it will be used to make sound decisions.

That’s a big ask, given that even most data experts don’t fully understand these issues, and that people are being asked for consent for companies to use their data in ways that affect other people, potentially negatively. All this to say, even “informed consent” isn’t the silver bullet we often think it is.

And of course the main point here should be that these are all empty promises until they’re actually defined in a concrete proposal.

Data governance

“Clear and robust structures of accountability for the safe use of data including open protocols and rules”

“Algorithmic transparency to avoid bias or marginalization”

“Reasonable limits on use of even aggregated data” (not defined)

Explore “novel ownership structures for non-personal data

Note: Again, these commitments mean nothing until they are actually defined. As for the “novel ownership structures,” we can jump ahead a bit and note that this is referring to “urban data,” a phrase that doesn’t exist in Canadian law or in the data scholarship or data-policy debates (and which Sidewalk Labs can define to fit its own interests), and a “data trust,” which as Dr. Natasha Tusikov notes, would not be a “trust in the legal sense.”

Innovation: Making up phrases that sound like they mean something other than what they mean!

Data sovereignty

They will follow the law of the land.

Note: While it’s nice to know they aren’t going to commit to breaking any laws, it also means that they won’t go beyond the law to actually localize Canadian data in Canada.

Network governance

Systems and platforms that are open by default (Schedule G, Article 4).

Secure data and resilient infrastructure “and solutions”

Note: Again, the details will matter.

The Digital Strategy Advisory Panel

The mandate of the Panel is to provide Waterfront Toronto with objective, expert advice to ensure that principles of ethical use of technology, accountability, transparency, protection of personal privacy, data governance and cyber security are upheld.

Its recommendations are non-binding.

Note: As I’ve noted in previous posts, the Auditor General of Ontario has noted that the (part-time) Digital Strategy Advisory Panel has had “limited” effectiveness (in the words of one of its own members).

Part II: Digital Governance for DSAP Consultations

This document reads like a public relations exercise, touting the people they’ve consulted, including, Dr. Ann Cavoukian, the former Information and Privacy Commissioner of Ontario and Privacy by Design consultant, who famously resigned as a Sidewalk Labs advisor at about this time because of concerns over privacy. (She has since softened her stance against Sidewalk Labs, embracing parts of the MIDP.)  There are no links to other reports, so it’s unclear where they came up with some of their more consequential ideas, particularly “Urban Data” and the “Civic Data Trust.” This thinness makes it difficult to evaluate on its own terms.

Profit source?

From the outset we knew that the monetization of data would not be part of our business model. (p. 4)

This comment responded to the fact that since October 2017 neither Sidewalk Labs nor Waterfront Toronto had been forthcoming about how the for-profit Sidewalk Labs would make its money on this project.

Privacy by design?

Sidewalk Labs leans heavily on “Privacy by Design” (p. 8). Teresa Scassa, Canada Research Chair at the University of Ottawa, data law expert par excellence and Digital Strategy Advisory Panel member, offers a useful critique of this proposal (spoiler: it’s much less than meets the eye).

As an added bonus, her line “The second point I tried to make in my 5 minutes at the Thursday meeting was about data governance” is telling regarding the amount of oversight the Digital Strategy Advisory Panel is able to provide. No matter how brilliant its members (and I’m a huge admirer of many of them), they’re still doing this on a part-time basis, meeting once every few weeks or months. An outside, part-time panel is no substitute for in-house experience.

  • “Independent governance is necessary to protect personal and public interests across areas of data stewardship, privacy, access, and, security—in addition to government enforcement of Canadian and Ontario privacy laws and regulations.” Everyone should be subject to the same rules (p. 10).

Let’s make up some concepts! Sidewalk Labs’ Civic Data Trust and Urban Data

From the beginning, one of the problems in evaluating Sidewalk Labs and Waterfront Toronto’s Quayside proposals is that they kept moving the goalposts. Two posts ago, I noted how Sidewalk Labs’ original $US 50 million ante was portrayed as an investment in consultations, or in the “initial planning and testing phase of the project.” In July 2018, it came out that it was also originally intended as a possible land downpayment, but then the Plan Development Agreement nixed that. It’s hard to keep up when you’re dealing with Billy Flynn-levels of creative confusion.

Here, we get two new terms that we’ve never seen before: a “Civic Data Trust,” and “urban data” (pp. 11-16).

Others, such as Dr. Tusikov, have discussed issues and concerns with these two terms, and this proposal spends some time outlining each concept, but for the purposes of preparing to examine the MIDP, the main point to keep in mind is that both of these terms are not found in Canadian law. Neither are they in common usage among data scholars. In fact, they seem to originate with Sidewalk Labs. A quick Google Scholar search reveals no examples of term “civic data trust” before 2019.  Categorizing data as “urban” and “non-urban” is likewise an innovation (it’s mentioned briefly in the Plan Development Agreement). (Sidewalk Labs defines urban data as “data collected in the physical environment” (p. 37)). In contrast, Canadian law tends to focus on personal information, not “urban data.”

What this means is that Sidewalk Labs can define these two terms any way they want. Their definitions in those documents will be consequential.

Noted: The Civic Data Trust would be responsible for obtaining some form of “community consent” (p. 38), which would seem to be a departure from the emphasis on individual consent.

Schedule I (above) of the Plan Development Agreement refers only to the need for “Meaningful, informed consent and opt-out provisions.” This part is probably linked to their idea of urban data, which would “not apply to Urban Data in most cases.” Such data would be made “freely and publicly available as a default matter and/or controlling access” (p. 38). It does make me wonder when, how and why Sidewalk Labs came up with the category of Urban Data in the first place, rather than using concepts based in the Canadian law that both Sidewalk Labs and Waterfront Toronto profess to hold so dear.

Responsible Data Impact Assessment

This document also proposes a Responsible Data Impact Assessment, to be done “at the design phase, prior to data collection or use” (pp. 17-21).

Again, how this is treated in the MIDP will be important. For now, the key point is that this is yet another example of Sidewalk Labs setting up the standards by which it will evaluate projects in which it will likely have an intimate interest. As with much of these proposals, including those under the “Governance Case Studies” section (pp. 22-25), it’s not the idea of a risk assessment that’s problematic; it’s the way in which it will be carried out. We need details, which hopefully will be provided in the MIDP.

Not a smart city, or an adaptable city, but one with different priorities

The “Open Digital Infrastructure and Services” commits to open architecture and standards rather than “a centralized, monolithic platform” (p. 30), that will be open to “a wide range of players” (p. 29).

Parts of the “Open Digital Infrastructure and Services” repeat the vapourware promises of Sidewalk Labs’ Project Vision document (e.g., the list on p. 27; “Enabling innovation by a wide range of players,” p. 29), but one thing that stood out to me was its mission-statement recap section, also on p. 27:

From the start of this project, we imagined a set of new experiences that could be possible in a new type of city. Streets that prioritized safety, pedestrians, and cyclists … . Buildings with a far more diverse and vibrant mix of uses … . Significantly reduced carbon emissions.

This statement highlights the fact that the Quayside project is as much about setting priorities as it is about introducing cool tech and sensors. Sidewalk Labs isn’t just selling a surveillance-driven datafied city. The above statement outlines the priorities Sidewalk Labs has for the city. They are a statement about how the city should be governed. And while they look pretty inoffensive, they amount in this context to governance by stealth, an attempt to change the city’s political priorities via infrastructure plans.

While it seems like we’re all discussing, say, algorithm-driven traffic flows, we’re actually discussing what rules should govern our cities, and who should be setting them. And the one thing that characterizes all of the Waterfront Toronto and Sidewalk Labs documents we’ve looked at up until now is that it assumes a particular set of priorities. This assumption effectively takes the discussion of whether these priorities are the right ones s off the table.

This gets to the problem with the above statement: it assumes that the desired outcomes are going to be uncontroversial and can therefore be left to the experts. It assumes that they are beyond politics.

One of the most important lessons I learned in my six years working for various federal parliamentary committees is that people of good faith (and almost all of the politicians I worked with fit this description) can have dramatically different visions about what policies Canada should adopt, and that what is uncontroversial to one person will be hugely troubling to another. That’s why we have politics and Parliaments: to work these things out in an open, democratic manner.

I certainly thought that a lot of what I heard from parliamentarians was wrong, but I never doubted that these perspectives came almost always from a desire to make Canada a better place. And even when I heard something that I thought was wrong, I tried to keep in mind that maybe (just maybe!) they knew more than I did, and that that I might be the one who’s wrong. That’s politics; that’s policymaking.

The last thing any city should do is to assume that everyone shares the same prioritization of means and objectives. These are political discussions and should be treated as such. Instead, Sidewalk Labs is proposing its own set of priorities, sidestepping the debate over whether or how these priorities should be pursued.

Data Localization: No, thank you.

 Sidewalk Labs isn’t going to do that (p. 35).

Quayside as a data source for Google?

They give a flat “no.” (p. 38)

We’ll see. I’ve read ahead and (spoiler) they leave themselves a lot of wiggle room. Sidewalk Labs

commits to not disclose personal information to third parties, including other Alphabet companies, without explicit consent (MIDP Overview, p. 84, emphasis added).

Not sharing without explicit consent is way different from a hard “no.” And as suggested by our above discussion about urban data and civic data trusts, to say nothing of their way of playing with the meaning of words like “no,” you can be pretty sure that regular people and Sidewalk Labs have very different ideas about what “explicit consent” actually means.

Sidewalk Labs’ role and general governance

  • Sidewalk Labs: will be the provider of “some critical infrastructure and core services,” with “other players provid[ing] the lion’s share of technology.
  • Governments: they enforce privacy laws
  • Data Trust: it will oversee the collection and use data, possibly with some government involvement.

That’s it for now. One more sleep until the MIDP!

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Liveblogging Sidewalk Labs’ Master Innovation and Development Plan, Entry 7: The July 2018 Plan Development Agreement

Previous Master Innovation and Development Plan liveblog entries and relevant documents available here

In my last post I highlighted the similarities and differences between the original October 2017 Framework Agreement and the July 2018 Plan Development Agreement, as laid out by the Toronto Star. Today I’ll focus on the Plan Development Agreement, with an eye to how it frames what will be in the MIDP.

Below are some notes on what stood out to me in the PDA. In particular, I highlight the odd co-governance relationship between Sidewalk Labs and Waterfront Toronto and the tellingly named “public engagement” strategy that falls short of best practices we would expect of public consultations (as opposed to engagement).

In Part I, I cover the overall plan for the MIDP. Part II discusses governance issues, Part III talks public engagement, and I highlight a few odds and ends in Part IV.

The Plan Development Agreement also includes a Schedule (Schedule I) that addresses digital governance issues.

PART I: The plan

A roadmap for a roadmap

The Plan Development Agreement is designed “among other reasons, to establish a roadmap for the planning phase of the Project involving the preparation and creation of a Master Innovation and Development Plan for the Project” (Preamble). In other words, it is a roadmap for a roadmap.

At the risk of sounding like a broken record, this is not the type of agreement that an organization that understands what a smart city is and how data “works” and how innovation happens should sign. If Waterfront Toronto had truly understood the project scope, they would’ve been able to know what to ask for in the first place. They could’ve gone straight to the proposal to develop Quayside according to principles that they themselves had set out. Instead we got a Request for Proposals to receive a proposal to create a proposal to develop Quayside (and more!).

The Plan Development Agreement reminds us that Sidewalk Labs was only established in 2015 (Article 1.01.a). In other words, it is a very, very young company with no track record. Again, it’s hard to avoid the thought that the only reason it landed this contract is because it’s a Google company, and we’re in a moment in which people believe that data-driven companies have some special insight into the world (spoiler: they don’t). No experience necessary.

In a sense, it’s a match made in heaven: a government agency with no experience in data/intellectual property/smart city governance working with a company with no track record in high-level urban development. What could go wrong?

MIDP Scope

Article 1.01 of Schedule B sets out the purposes of the MIDP, including improving quality of life, economic opportunity (as well as making Toronto “a global hub for urban innovation”), and addressing climate change, among other issues.

What the MIDP will do

“The MIDP will address the principal commercial terms for the potential implementation of the MIDP. The main agreements between the Parties to implement the MIDP are referred to herein as the ‘Principal Implementation Agreements’” (2.01(a); emphasis in original). Other agreements may be necessary (2.01(b)).

Land, IP and infrastructure: The Principal Implementation Agreements will include an agreed-upon methodology for valuing Quayside land, which could be affected by “the program set out in the MIDP.” Also on the table: “an ‘intellectual property methodology’ or ‘infrastructure methodology’” to address profit-sharing from these two aspects (2.02(a)-(d)).

Development: It will also ensure that any third-party development (“design and construction of any above-grade buildings”) on Quayside “will be led by Waterfront Toronto and undertaken jointly by Waterfront Toronto and Sidewalk Labs.” “The MIDP and/or Principal Implementation Agreements will identify those circumstances and conditions under which Sidewalk Labs will act as vertical developer” (2.03(b)).

MIDP “Pillars”

Article 1.02 of Schedule B sets out nine “pillars,” which the MIDP is to address:

  • Mobility (transportation);
  • Public realm (the outdoor environment);
  • Building plans;
  • Community and city services;
  • Environmental sustainability (e.g., addressing climate change);
  • Digital platform (covers embeddedness in the physical environment, emphasizing adaptability over time, open for use to everyone, privacy-protecting standard for personal privacy. Note: mentions “urban data,” a term that is not in Canadian law and which Sidewalk Labs seems to have invented for this project);
  • Privacy and data governance (emphasizes planning targets (massing, density, phasing and zoning) that reflect sound planning principles);
  • Pre-MIDP-approval pilots and early actions;
  • Housing affordability (covering programs, policies, business models, and existing programs that make housing more available and affordable);
  • Economic development
    • Creation of an Urban Innovation Institute
    • Establishment of Google’s Canadian headquarters
  • Holistic development and planning, linking all of these pillars, creating “strategies around project phasing, occupancy, statutory and regulatory matters, and implementation.”
    • Article 1.04 highlights that regulatory and other changes will be needed.

PART II: Governance

The buck stops with Waterfront Toronto and Sidewalk Labs

The MIDP will be subject to the approval of each of Waterfront Toronto, in its sole, absolute and unfettered discretion (including the approval of its board of directors and any Additional Approvals on which Waterfront Toronto elects to condition its approval…) and Sidewalk Labs, in its sole, absolute and unfettered discretion  … . (3.01(a))

No other officials need apply (sorry, Toronto city councillors). It’s all in the hands of Sidewalk Labs and the Waterfront Toronto Board of Directors.

Digital issues

Waterfront Toronto is given the responsibility to oversee “digital governance elements of the MIDP, including through the Digital Strategy Advisory Panel in accordance with the Digital Governance Framework Principles” (1.03(iv))

This is a lot of pressure on a part-time panel, especially one whose own members have remarked to the Ontario Auditor General that their “effectiveness in providing management guidance on key issues in the smart city project has been limited,” in the Auditor General’s words, and has been hit by several high-profile resignations.

Choose your own evaluation scheme

Of particular interest from a governance perspective, the MIDP will include (Schedule B, 1.01):

  • “planning targets (massing, density, phasing and zoning) that reflect sound planning principles”;
  • “a financial plan and economic targets that set minimum expectations of land value and rates of return that work at different scales; and
  • “performance measures that if met justify replication of the development and innovation plan.”

As previously discussed, this requirement effectively turns Sidewalk Labs into a co-equal governing authority. Instead of the lead government authority setting the terms regulating how the project will be run and evaluated, this is being done by Sidewalk Labs in conjunction with Waterfront Toronto. And given that (as we will likely see) that the final MIDP seems to be a Sidewalk Labs-authored document, to which Waterfront Toronto had to issue, a week later, a reply of its own, my suspicion is that these provisions effectively mean that Sidewalk Labs is setting both the targets and the evaluation criteria. But again, this is what the RFP envisioned.

Merging of the regulator and the regulated

Schedule F sets out that the creation of the MIDP is a collaborative process, not the child of either Sidewalk Labs or Waterfront Toronto, but of the two organizations working together. Furthermore, “Any public communications and materials related to the MIDP must be jointly approved by both Parties.” (1.03(c))

In Schedule J (1.01), this blurring of responsibilities between buyer and seller, governor and governed, is justified because they “have entered a bold, first of its kind, and innovative approach to city building to deliver transformative benefits in quality of life to a diverse set of residents, workers, and visitors to Toronto. This requires the collaboration of Waterfront Toronto and Sidewalk Labs to develop the MIDP.”

The ability to set the rules is an enormous source of power.

Another way of saying what this section says is, the missing ingredient in promoting urban innovation and quality of life, from the beginning of time until now, has been that for-profit companies weren’t given sufficient power to help set the rules governing a city.

PART III: Public engagement

Public and government engagement: Promise of consultation

The MIDP will be developed through a process of co-creation and collaboration between the Parties, informed by a robust public engagement process and close collaboration with the City of Toronto and other governmental agencies and stakeholders. (Schedule B, 1.04)

It would be interesting to hear from City councillors and “other governmental agencies and stakeholders” to see if they feel that they were suitably engaged in “close collaboration” with Sidewalk Labs in the preparation of the MIDP. At the very least, I will be reading the MIDP with an eye to mentions of such collaboration.

Public engagement

Section 2.01(c) of Schedule J sets out the forms of public engagement to be used by Sidewalk Labs and Waterfront Toronto in promoting the Quayside project:

  • Public roundtables (“Opportunity for the public to be kept up-to-date on the Parties’ progress, to work in small facilitated groups, and to help shape the Parties’ plans and goals, challenging assumptions and refining their thinking during key phases in the creation of the MIDP.”)
  • Design jams/Design charrettes (examining specific elements of the “potential plan”)
  • CivicLabs (brainstorming of possible solutions to be piloted by the parties)
  • Neighbourhood Meetings (“to share updates on the MIDP, answer questions and seek feedback.)
  • Pop-Ups
  • Six advisory working groups (to be run by Sidewalk Labs)
  • Reference Panel (36 people selected from across the city “to help provide policy and planning guidance and insights.)
  • Sidewalk talks (talks from experts on urban issues “that are relevant to the Project but not Project related”)
  • 307 Lakeshore (showcase “living technologies, cultural programming, and interactive exhibits and workshops to learn more and help shape the MIDP)
  • Social media outreach

Schedule J (2.01(d)) also sets out a three-pronged social-media strategy, involving information provision by Sidewalk Labs and Waterfront Toronto, soliciting feedback, and getting in touch with “a diverse set of online constituencies,” as well as using it as advertising for “in-person events.”

What stands out about this process, as I’ve previously noted, is how analog it is. It is biased toward in-person gatherings and information sessions. There is a lot of public engagement here, and relatively little public consultation. With the partial exception of social media, most of these events are biased toward information sessions, with citizens reduced to reacting to Sidewalk Labs proposals, rather than being the catalyst for planning policy. (And even their social-media strategy has a bias toward providing information rather than encouraging conversations.) Neither does it leverage the interactive potential of the internet to meet the gold standard of public consultations, namely the Brazilian Marco Civil consultations that Dr. Natasha Tusikov and I have discussed elsewhere. The Quayside consultations are the type of consultations that you undertake when you’re involved in a top-down urban-planning exercise.

And regarding social media, I would’ve hoped by now that public agencies would realize that Facebook, Twitter and Instagram have become so hopelessly degraded as public fora that they aren’t suitable venues for meaningful, informed public engagement. Instagram is for pictures, Twitter is for rapid-fire snark, and Facebook… well, Facebook is where civil conversation goes to die. They are not how you meaningfully engage with citizens.

PART IV: Odds and ends

Intellectual property

When it comes to deciding who will benefit from intellectual property in this project, the Plan Development Agreement kicks the can down the road to the MIDP (2.02(d)).

Waterfront Toronto is supposed to work with Sidewalk Labs “to develop the financial model and implementation phasing for the Project that seeks to make the Project financially viable and developing the business case for the MIDP, taking into account land value, Intellectual Property and infrastructure plans and any related standards or requirements.” (1.03(iii))

Interestingly, trade secrets, the hottest form of intellectual property these days, and the key form of intellectual property protection used by companies like Google to protect their proprietary algorithms is not mentioned in Schedule G, “Intellectual Property Terms,” when listing the various “Types of intellectual property.”

Also described as a type of intellectual property is data, which is not recognized as being covered by intellectual property in Canadian law.

Schedule G also mentions a particular type of IP, “Site-Specific IP”; “non-MIDP Site IP” and “Co-Created IP”; the first and third require definition by Sidewalk Labs and Waterfront Toronto.

Ending the relationship

Article IX sets out the situations under which this adventure could come to an end (9.01):

  • Mutual agreement;
  • If either side isn’t able to get approval for the MIDP by an agreed-upon date, or if one informs the other that approval failed;
  • An irreconcilable dispute;
  • A “funding suspension” if Sidewalk Labs decides that this isn’t going to work (9.03);
  • An agreed-upon date if the Principal Implementation Agreements aren’t approved.

Sole-sourcing

Not sure how much of a deal this would be, but am highlighting it just in case:

“Implementation Agreements will generally contemplate competitive procurement processes, with limited exceptions allowing for Sidewalk Labs or its affiliates to provide Purposeful Solutions, but only on a fair and demonstrably arms’-length basis.” (Schedule C, 1.02)

Tomorrow: One final detour to discuss data governance, and then it’s all MIDP, all the time!

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Liveblogging Sidewalk Labs’ Master Innovation and Development Plan, Entry 6: Comparing the July 2018 Plan Development Agreement and the original 2017 Framework Agreement

Previous Master Innovation and Development Plan liveblog entries available here

Previously, on MIDP Theatre

This is the sixth entry in our ongoing “urban development thriller,” so it might be time for a recap. When we last tuned into the ongoing Quayside/Eastern Waterfront drama, Waterfront Toronto had just wrapped up its Request for Proposals process for Quayside (which it owns) and (maybe, perhaps) the Eastern Waterfront (which it is in charge of developing but doesn’t own). In the end of a process marred with significant irregularities, including the Ontario Auditor General’s finding that the government bureaucracies were sidelined, with the project “being discussed at a senior political level,”  Waterfront Toronto awarded Sidewalk Labs the right to come up with a plan for Quayside, or maybe also the Eastern Waterfront. In attendance at the award ceremony: Prime Minister Justin Trudeau, then-Ontario Premier Kathleen Wynne, and Toronto Mayor John Tory, as well as Alphabet (née Google) CEO Eric Schmidt.

The oddness continued as Sidewalk Labs released a part of its RFP submission, which was long on shiny vapourware and short on data and intellectual property governance, the meat and potatoes of this (or any) smart city project. In not releasing the sections of the proposal that dealt with these issues (likely section A5. Approach to Business Case and Financial Requirements), Sidewalk Labs and Waterfront Toronto focused (or attempted to focus) the public conversation on possible technological outcomes, even though these outcomes are by definition uncertain. After all, the whole point of this project is to encourage innovation, which involves trying out lots of weird projects, many of which will fail.

Sidewalk Labs’ RFP  response wasn’t the only thing that it and Waterfront Toronto refused to show the public. Also MIA was the October 2017 Framework Agreement, which was not released until July 2018, when it finally emerged alongside the Plan Development Agreement, which it superseded.

Which brings us to the “Plan Development Agreement Between Toronto Waterfront Revitalization Corporation and Sidewalk Labs LLC,” released at 4 pm on July 31, 2018. Or more precisely, to a comparison of the two agreements.

Or to be even more specific, the Toronto Star’s six-page table outlining differences between the two agreements (it’s embedded near the bottom of the page). We’ll get It’s all worth reading, but a few things stood out:

Geographic scope

The original scope was for “Quayside and lands in the ‘Eastern Waterfront’ as they become available to WT.” In the revised Plan Development Agreement, explicit mentions of the Eastern Waterfront disappear, replaced by a mention of expansion to “Designated Waterfront Areas. … Except for Quayside, no lands in the DWA are automatically included in the MIDP. Inclusion of lands outside of Quayside is based on justification with a business case” (p. 1).

That said, the Eastern Waterfront remains in the mix; the MIDP will involve “both plans for the Quayside Parcel and plans at scale” (i.e., the Eastern Waterfront) (Schedule B, 1.03).

So, the Plan Development Agreement doesn’t take the Eastern Waterfront off the table; it just clarifies how it might be included later. And as we will see when we finally get to the MIDP, it certainly didn’t change Sidewalk Labs’ covetousness regarding these huge tracts of land.

Data governance

The original Framework Agreement “was mostly silent on issues of privacy and data-sharing” (p. 5), which is a big tip-off that when it issued its RFP Waterfront Toronto was almost completely ignorant about the fuel that runs a smart city, and Google’s Sidewalk Labs, which certainly knew better, did not think to enlighten them.

It’s increasingly hard not to think that Waterfront Toronto proposed their Quayside project because they wanted something sexy to kickstart their fortunes, without understanding what they were doing.

Roles and responsibilities

Initially, Waterfront Toronto was supposed to be more active in the beginning of the project, “then fall into a supporting role to SWL as Master Developer during implementation.” In the Plan Development Agreement, Waterfront Toronto’s role has been upgraded, making “it clear that WT is the steward of the public interest, the revitalization lead, and to work in collaboration with SWL in creating the MIDP and throughout any implementation, including community and government consultations” (pp. 2-3).

As for Sidewalk Labs, its originally envisioned role as “Master Developer” in the Framework Agreement did not make it into the 2018 Plan Development Agreement. Instead, “Steps beyond planning and oversight of MIDP are subject to further approvals. SWL’s role in any vertical development or infrastructure to be defined in MIDP creation phase” (p. 3).

Given Waterfront Toronto’s odd response to Sidewalk Labs’ MIDP – releasing a 60-page “Note to readers” (we’ll get to it eventually) that challenges many points within the MIDP – suspicion regarding the extent to which it has actually led this process would be understandable.

“A man without land is nobody.”

The Framework Agreement “had several clauses that contemplated options or requirements to transfer or make land available to SWL for purchase”; these were removed in the Plan Development Agreement, “and makes it clear that the $50M does not constitute payment towards land” as originally intended (p. 4).

From the very beginning, Sidewalk Labs’ $US 50 million was showcased as an expression of the sincerity of its interest in Toronto, which would be used to fund consultations with the people of Toronto. If people had known that this was effectively a downpayment on these lands, Sidewalk Labs and Waterfront Toronto would have lost an enormous amount of goodwill. The whole project would’ve been seen as a land grab by a rapacious American corporation cloaked in disingenuous platitudes to Jane Jacobs.

Eastern Waterfront development on hold, sort of

The Eastern Waterfront may not officially be part of the up-front plans, but both Waterfront Toronto and Sidewalk Labs are acting as if it is still part of the deal, sort of. The agreement assures that “During the MIDP creation stage, neither WT nor SWL will negotiate any planning or development transactions in the Designated Waterfront Area that would be an alternative to, or interfere with, the project (i.e., exclusivity is expanded, and mutual) (s. 11.01)” (p. 6)

In my next entry, I’ll get to some of the other highlights of the Plan Development Agreement proper.

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Liveblogging Sidewalk Labs’ Master Innovation and Development Plan: Guest post: An analysis of all the new public agencies proposed in the MIDP

I won’t start posting about the actual MIDP for a couple of days (so much background reading…), but to whet your appetite, please enjoy this comprehensive guest post from Dr. Natasha Tusikov of York University. – bh

Previous Master Innovation and Development Plan liveblog entries available here

Sidewalk Labs, the Google sister company, outlines its plans for the proposed smart city on Toronto’s eastern waterfront in its Master Innovation and Development Plan (MIDP), released June 24, 2019. As part of its ambitious 1,500-page MIDP, Sidewalk Labs proposes the creation of five so-called “management entities” falling under a public administrator that would be responsible for managing the IDEA District on Toronto’s eastern waterfront. The new public administrator would involve creating a public body, amending an existing government department, or, possibly considerably augmenting Waterfront Toronto’s authority. As envisioned by Sidewalk Labs, the new public administrator would be a governmental body with relevant departments from the City of Toronto as stakeholders.

The public administrator would manage and oversee the Waterfront Transportation Management Association (WTMA), focused on mobility, and the Waterfront Sustainability Association (WSA), focused on sustainability. The public administrator would also act as sole trustee for one private body, the Waterfront Housing Trust (WHT), a public-private financing entity.

In addition, the public administrator would help coordinate the management the Open Space Alliance (OSA) and the Urban Data Trust. The OSA, which would focus on managing physical and digital infrastructure in public spaces, would be managed by a public-private body. The Urban Data Trust, which would govern all data collected and used within the IDEA District would exist first as an independent non-profit organization and then, potentially, evolve into a public agency.

Based upon a preliminary analysis of the Master Innovation and Development Plan, the following is intended to provide a concise overview of the five management entities that the public administrator would directly manage or facilitate coordination among public and private stakeholders. Although Sidewalk Labs devotes sections in chapters to each of the management entities, information on these entities and their duties is scattered across the entire MIDP.

This overview describes each proposed entity and also identifies key regulatory adjustments that would be needed to implement its plans. It also highlights the proposed sources of funding because funding will come from new fees (paid by residents or businesses) or by reallocating revenues. People will have to pay for this. Sidewalk Labs lists all its proposed regulatory adjustments and reforms in the Volume 3, Supplemental Tables, pages 224-232.

Expanded Geographical Scope

The original Request for Proposal, released by Waterfront Toronto, the tripartite public agency that issued the bid, pertained only to the 12-acre Quayside region, although there was a possiN post graphic 1bility for the successful vendor to apply for an expansion or for the project to be extended into the wider Eastern Waterfront under certain conditions. In its MIDP, however, Sidewalk Labs proposed plans cover 190 acres of what its terms an “Innovation Development and Economic Acceleration” (IDEA) District. The IDEA District would have seven neighbourhoods (see Sidewalk Labs’ map). Sidewalk Labs argues that its ideas and proposed technologies would be most effective when deployed throughout the larger IDEA district (outlined in the map below in checked line). Villiers Island West is Sidewalk Labs’ proposed site for the new Canadian Google headquarters.

The “management entities”

Waterfront Transportation Management Association (WTMA)

Q: What is the Waterfront Transportation Management Association?

As proposed by Sidewalk Labs, the WTMA would be established as a new public body under the

IDEA District public administrator. The WTMA would be responsible for managing and operating physical and digital infrastructure relating to transportation within the IDEA district, most significantly deploying a real-time data-based mobility management system to coordinate all traffic.

Q: What stated need would the WTMA address?

According to Sidewalk Labs, an innovative approach to mobility and transportation, including its proposal for real-time pricing for parking and passenger drop-off/pick-up, requires the coordination and direction of a single dedicated entity. This single entity does not currently exist within Toronto as many of the functions that Sidewalk Labs proposes for the WTMA are undertaken by separate departments, such as the Transportation Services Division and the Toronto Transit Commission. Sidewalk Labs contends that bringing together these functions under a single entity–the WTMA–and adding additional functions like the mobility management system, will deliver more efficient, sustainable mobility services in the proposed IDEA District.

Q: What are the proposed responsibilities of the WTMA?

The WTMA would be responsible for creating and operating a mobility management system. Working in collaboration with the City of Toronto’s Transportation Services Division and the Toronto Transit Commission, the WTMA would:

  • maintain and replace the proposed modular pavement system, which are hexagonal pavers used to construct streets (including heating or traffic signals);
  • deploy a real-time mobility management system that monitors and coordinates all streets and traffic signals within the IDEA District in real time, gathering data on traffic volume, delays, weather, and emergency vehicles to coordinate traffic and provide real-time information on pricing (e.g., of parking or curbside drop-offs) and route closures;
  • assume control over curbside policy and control over pricing of the use of curbs, areas currently the purview of the City of Toronto;
  • oversee planning, operations, and maintenance of new mobility-related infrastructure, such as dynamic curbs (Note: dynamic curbs use lighted pavement or signs to makes street spaces flexible to provide passenger loading zones during rush hour and public spaces at off-peak times for activities like pop-up street fairs);
  • apply data analytics to employ real-time pricing on parking and curb usage, as well as manage and set those prices;
  • procure and operate new technologies, such as adaptive traffic signals, dynamic pavement, freight and deliveries, and integrate systems with third-party navigation apps;
  • set speed limits on speed-separated streets;
  • undertake (or contract public or third parties to) construct and finance roads or parking facilities, and clear snow and debris; and
  • create a mobility subscription package for IDEA District residents, which would include a TTC monthly pass and travel credits or subsidies across all modes, including bikeshare or ride-hail services.

Q: How would the WTMA be funded?

Sidewalk Labs proposes that the WTMA’s operations be financed by fees in a way that ensures the entity is self-sustaining. In particular, WTMA would collect fees for parking, curbside pick-up/drop-off fees, road user fees for ride-hail vehicles using the project’s specially designed local streets, and charges for mobility services in relation to its operation of dynamic streets and curbs within the IDEA District. Revenue would also come from on-site parking garages and the sale of mobility packages.

Q: What would be required to implement the WTMA?

Sidewalk Labs proposes to create the Waterfront Transportation Management Association as a public body under the proposed IDEA District Public Administrator which would require amending existing or creating new legislation. Certain policymaking and enforcement responsibilities would have to be devolved from Toronto’s Transportation Services Division and Toronto Parking Authority to the WTMA, such as control over parking and curbs.

Q: What challenges does the WTMA raise?

The creation of the WTMA as a new public entity would require amending existing or introducing new legislation. As envisioned, the WTMA would assume control over parking and curbside policymaking, pricing, and enforcement from the City of Toronto and the Toronto Parking Authority. How this devolution of duties and loss of revenue from parking within the IDEA District may affect the Toronto Parking Authority will have to be considered.

While Sidewalk Labs envisions one entity coordinating all transportation and mobility services within the IDEA District with a steering committee with representatives from all three levels of government, it’s unclear how the WTMA would operate with existing departments within Toronto. Sidewalk Labs states that the WTMA would be largely (or entirely) self-funded through the collection of revenue from parking and curb pricing. However, given the breadth of its proposed duties, the WTMA will likely need ongoing public funding to fulfill its mandate. It’s also unclear whether there is the political and public appetite for creating a new public agency to coordinate transportation issues within a single neighbourhood.

A risk that Sidewalk Labs clearly lays out in its master plan is that the WTMA would yield greater benefits at the scale of the River District and even more so at the IDEA District, which could not effectively be realized if it were deployed only in the smaller Quayside district. Waterfront Toronto’s original Request for Proposal was for Quayside only, not for the much larger IDEA District proposed by Sidewalk Labs. Another significant challenge to the proposed WTMA entity is that if the transportation management system were restricted to Quayside instead of being extended across the IDEA District, according to Sidewalk Labs, the effects “would be limited, as there are simply not enough intersections to balance safety, congestion and trip choices” (2019, Ch. 1, p. 95). Sidewalk Labs clearly states that it wants to apply its proposals throughout the IDEA District instead of the much-smaller Quayside area that was the subject of the public consultations.

 Key regulatory adjustments:

In order to implement its dynamic curb and real-time pricing plans, and to set its own speed limits within the IDEA District, amendments would be needed to the Ontario Highway Traffic Act, City of Toronto Act, City of Toronto Municipal Code, the City of Toronto Zoning Bylaw, and the City of Toronto Complete Streets Guidelines. While these amendments may deliver useful services, permitting the IDEA District to have carte blanche to change rules on parking, speed limits, and street and curb usage could create an unhelpful patchwork of rules and regulatory bodies across Toronto.

Waterfront Sustainability Association (WSA)

Q: What is the Waterfront Sustainability Association?

Sidewalk Labs proposes that the Waterfront Sustainability Association be established as a new public body under the IDEA District public administrator with the responsibility for administering private entities responsible for environmental sustainability, including energy and waste water.

Q: What stated need would the WSA address?

In Waterfront Toronto’s Request for Proposal, it set a goal of making the waterfront area a climate-positive community. In response, Sidewalk Labs proposed the WSA to focus on environmental sustainability, including in regards to waste-water and storm-water management, and an advanced power grid.

Q: What are the proposed responsibilities of the WSA?

The Waterfront Sustainability Association would be responsible for operating and overseeing four advanced sustainability systems in the IDEA District: the thermal grid, waste management system, advanced power grid, and storm-water management system. This includes:

  • issuing and overseeing operating contracts as needed;
  • monitoring compliance with and enforcing service contracts with private third-party operators, including contractual rates;
  • establishing a mechanism to hold operators accountable and fairly representing the interests of users in the district for systems that are not currently subject to public regulation; and
  • compiling and reviewing key operator performance metrics, including in relation to sustainability objectives.

Q: How would the WSA be funded?

Each system operator (e.g., thermal energy) would be responsible for paying certain fees, such as covering the costs for the Waterfront Sustainability Association to maintain operational oversight. System operators would also pay fees to the lead developer for advanced systems (initially Sidewalk Labs and later the public administrator). Participating operators would fund the WSA through fees prorated based on each operator’s revenue.

Q: What challenges does the WSA raise?

The creation of the Waterfront Sustainability Association as a new public entity, similar to the WTMA, would require amending existing or introducing new legislation. As with the WTMA, it’s unclear whether there is the political and public appetite for creating a new public agency to coordinate sustainability-related issues within a single neighbourhood. A risk is that the Waterfront Sustainability Organization would not be self-financing through the collection of fees from system operators, but would require an ongoing source of public funding to fulfill its responsibilities.

Key regulatory adjustments:

In order to implement its plans for sustainable storm-water management, permissions would be needed to the City of Toronto Act, Ontario Energy Board, Ontario Water Resources Act, and the City of Toronto Wet Weather Management Guidelines. For its thermal grid extensions, the plans would require permissions from Toronto District Heating Corporation Act, Public Utilities Act, and the City of Toronto Act.

Open Space Alliance

Q: What is the Open Space Alliance (OSA)?

As proposed by Sidewalk Labs, the Open Space Alliance would be a non-profit, non-governmental organization that would enter into public-private partnerships with the City of Toronto and private third-party entities (land owners/developers) to manage and coordinate various physical and digital infrastructure in public spaces in the Quayside, the River District, and the IDEA District.

Q: What stated need would the Open Space Alliance address?

Sidewalk Labs says the Public Realm Advisory Working Group urged it to consider “an innovative governance model for public space” and to work with the City of Toronto’s Parks, Forestry, and Recreation department to “structure a sustainable management and funding plan that would ensure public ownership of parks while allowing for innovation in programming, operations, and maintenance” (Sidewalk Labs 2019, Ch. 2, p. 197).

Q: What are the proposed responsibilities of the Open Space Alliance?

Sidewalk Labs proposes an ambitious range of roles that include maintenance of physical infrastructure, arts and cultural programing, piloting new technologies, and serving as a steward for open spaces across the IDEA District. In particular, the MIDP proposes that the OSA:

  • be responsible for the ongoing maintenance and management of green storm-water infrastructure in the River District;
  • play a central coordination function across programming, operations, and maintenance to maximize access and enjoyment of shared open spaces, including in former vehicular rights-of-ways;
  • administer physical and digital infrastructure that could help people shape and program shared spaces involving, for example, civic technologists running pilots in open public spaces;
  • work with building owners to install and manage prototypical architectural designs in outdoor spaces, particularly Sidewalk Labs’ proposed building raincoats that shelter sidewalks, fanshells that cover open spaces, and lantern forests that block pedestrians from wind between buildings;
  • fund the procurement of technology services that could help improve programming, operations, and maintenance;
  • fund and support technology-enabled arts and cultural programing, such as artist residencies and design competitions;
  • coordinate, administer and oversee the proposed innovative systems, such as district-wide green infrastructure, digital and physical infrastructure for public artworks and film shoots, weather mitigation, digital maintenance technologies, and new tools for community programming;
  • and, importantly, manage the physical and digital infrastructure delivered by Sidewalk Labs.

Q: How would the Open Space Alliance be funded?

Sidewalk Labs proposes the Open Space Alliance would be jointly financed and managed by public (e.g. Parks, Forestry & Recreation Division) and private stakeholders (e.g. land owners, local businesses) in partnership with the City of Toronto. Funding from the City of Toronto would be diverted from traditional city parks funding. Landlords and tenants in the IDEA District would fund OSA’s operational and capital expenses. Specifically, developers would pay the Open Space Alliance an “upfront green infrastructure fee” and a monthly maintenance fee for the construction and maintenance of water management infrastructure within the developers’ sites. In addition, the Open Space Alliance would receive revenue from sponsored events, special elements, and concessions.

Q: What would be required to implement the Open Space Alliance?

The Open Space Alliance would be created a non-profit organization. As proposed by Sidewalk Labs, it would be jointly governed and financed by the City of Toronto and private third parties, and the IDEA District community would also have input on the OSA’s operations. A portion of municipal park funding would be directed toward the OSA, and likely funding from other public sources would be required to ensure its ongoing viability. The OSA is proposed to replace certain roles currently undertaken by the City of Toronto Parks, Forestry & Recreation Division, including operations and maintenance of public spaces.

Q: What challenges does the Open Space Alliance raise?

As proposed, the Open Space Alliance would be responsible for a broad array of services, from maintenance of storm-water infrastructure, and the operation of public spaces and outdoor architectural features across the IDEA District to the operation and coordination of physical and digital technologies created by Sidewalk Labs, and supporting cultural and community programing. This diversity of services would be a challenging workload for any department, even when carried out across a relatively small area such as the IDEA District. In addition, Sidewalk Labs’ proposal that the OSA manage the physical and digital infrastructure delivered by Sidewalk Labs would appear to unfairly privilege one company over others.

The Parks, Forestry & Recreation Division at the City of Toronto would be affected as a portion of its funding would be diverted toward the OSA. This Division would also be affected as some of its roles and functions, such as the maintenance of public spaces, would be undertaken by the OSA within the IDEA District. The OSA would likely require an ongoing source of public funding in addition to the fees collected from developers and land owners. What’s unknown is the OSA’s governance structure, its legal authority, the specifics of its funding, and its relationship to existing non-governmental and governmental bodies working in public spaces, cultural programing and digital infrastructure.

Key regulatory adjustments:

In order to implement its plans for the outdoor comfort system using building raincoats, fanshells, and forest lanterns, amendments would be needed to the City of Toronto Municipal Code.

 Urban Data Trust

Q: What is the Urban Data Trust?

As proposed by Sidewalk Labs, the Urban Data Trust would be an independent non-profit entity that would govern the collection and use of what Sidewalk Labs terms “urban data” in the IDEA District. Urban data refers to data collected from the physical environment, such as parks, and it includes both personal information from identifiable individuals and non-identifiable data. Although Sidewalk Labs uses the term “data trust,” the company argues that it is not “a ‘trust’ in the legal sense” (Sidewalk Labs 2019, Ch. 5, p. 423). Instead this trust is a “legal structure that provides for independent stewardship of data,” a definition of a data trust from the Open Data Institute, a U.K. non-profit (Open Data Institute 2019, p. 2).

Q: What stated need would the Urban Data Trust address?

Sidewalk Labs says that an important theme it heard during the public consultation was the public’s concern with the ownership and stewardship of urban data. In response, Sidewalk Labs contends that the trust would create an accountable, transparent process to manage and approve the collection and use of urban data.

Q: What are the proposed responsibilities of the Urban Data Trust?

Generally, the trust would govern the collection, use, disclosure, and storage of urban data within the IDEA District. Applicants for data collection or use would make submissions to the trust to review and approval. This would involve reviewing the data to verify the applicant’s compliance with all applicable laws and an assessment that weighs the activities’ proposed benefits and the potential harms. The trust is also responsible for managing the access of publicly available data through data sharing agreements. The trust would have the authority to audit applicants as required and order the removal of data collection devices in the event of a violation.

Q: How would the Urban Data Trust be funded?

Applicants seeking to collect or use data in the IDEA District would pay a data collection and use-administration fee to cover the trust’s costs. However, it would be likely that the trust would require ongoing funds from government to maintain its operations. Sidewalk Labs proposes that the trust evolve into a public or quasi-public agency in the long term, and such an agency would most likely rely upon, at least in part, public funding.

Q: What would be required to implement the Urban Data Trust?

In the short term, Sidewalk Labs proposes that the trust be created as an independent, non-profit, non-governmental agency. This entity would operate by establishing legal agreements with all applicants who seek to collect or use data pertaining to the IDEA District. Those agreements, together with a set of legally binding rules drafted by the trust in consultation with its public and private stakeholders, would govern how data is collected, stored, used, and commercialized, would monitor compliance with its rules, and would take legal action against non-compliance. In this phase, Sidewalk Labs proposes that the trust’s focus in this phase would be Sidewalk Labs’ own data collection projects.

In the longer term, should the trust be transformed into a public-sector agency or a quasi-public agency, legislation would need to be amended or introduced and an ongoing source of public funding secured.

The trust, in consultation with relevant stakeholders and regulatory bodies, including the Information and Privacy Commissioner of Ontario, would need to determine where the publicly accessible data would be stored, unless the trust would also act as the data repository.

Q: What challenges does the Urban Data Trust raise?

How this trust would operate, its structure and regulatory powers, the source and scope of its legal authority, its possible sources of public funding, and its relation to other regulatory bodies and governmental departments within the city of Toronto and province remain unclear, as does the political and public appetite for creating a new public agency.

Another challenge in relation to the proposed data trust are the trustee’s roles in creating and enforcing rules regarding data collection, storage, protection, and use, including commercialization. Depending on how the regulatory body is structured and its legal authority, the data trustees, whether public or private actors, could have considerable regulatory power.

While understandable, it’s rather self-interested for Sidewalk Labs to submit that its projects should be first in line for consideration by a neophyte regulator that it proposed. More problematically, if the data trust goes ahead, Sidewalk Labs’ involvement with the trust in the first phase would likely shape discussions of how (or even if) the temporary trust should involve into something more permanent, perhaps in ways that serve Sidewalk Labs’ interests at the expense of other interested parties.

Waterfront Housing Trust

Q: What is the Waterfront Housing Trust?

Sidewalk Labs proposes that the Waterfront Housing Trust be established as a private trust that would act as a public-private financing entity to administer below-market housing program in the IDEA District. The IDEA Public Administrator would serve as the Trust’s sole trustee.

Q: What stated need would the Waterfront Housing Trust address?

The City of Toronto is facing a serious shortage of affordable housing and one of Waterfront Toronto’s priorities is housing affordability. In response, Sidewalk Labs proposes the creation of the Waterfront Housing Trust as a new financial vehicle to collect and distribute funding from a variety of sources, including a condo resale fee proposed for the IDEA District. The trust is intended to incubate alternative funding sources, including low-cost loans to reduce lending costs and improve funding predictability for developers of affordable housing.

Q: How would the Waterfront Housing Trust be funded?

Individuals selling condos within the IDEA District would pay a percentage of the sales price to support affordable housing. Sidewalk Labs contends that the Waterfront Housing Trust would collect these funds and pair them with existing funding sources, and use the combined funds for an affordable housing strategy for the IDEA District

Q: What challenges does the Waterfront Housing Trust raise?

As proposed, the Waterfront Housing Trust would aggregate funding from existing sources for affordable housing and pair this revenue with its new tax on condo resellers. Formal approval may need to be obtained from the entity currently responsible for distributing affordable housing funding.

 Key regulatory adjustments

The Waterfront Housing Trust would have to seek authorization to build units smaller than indicated in the Affordable Rental Housing Guidelines of the City of Toronto Affordable Housing Office. Approval would be needed from the City of Toronto Affordable Rental Housing Guidelines and Ontario Building Code. Sidewalk Labs notes that the Waterfront Housing Trust would also need approval from the federal government and City of Toronto in order to receive funding for a portfolio of properties, rather than development by development.

Assumptions and concerns

There are a number of unproven and unstated assumptions underlying Sidewalk Labs’ proposal of five management entities and a super-Public Administrator for the IDEA District.

  • Most seriously, there’s an assumption that the current distribution of services and responsibilities among multiple government departments is necessarily inefficient. It’s assumed that bringing together diverse responsibilities under one department will improve efficiency and responsiveness, especially when aided (somehow) with technology.
  • There’s also a risky assumption that user fees will be able to solely or largely support the creation and ongoing operation of these entities. However, there is no associated costing showing the estimated revenue from user fees or the projected costs of creating the new management entities.

Where more bureaucracy equals innovation?

Sidewalk Labs’ plan come with a heavy public bureaucratic burden, an odd thing to propose given that over the past several decades the move has been away from over-governance. It’s hard to see, for example, the current Ontario government and small-c conservative mayor of Toronto, embracing five new “management entities” a super-Public Administrator to govern a relatively small area of Toronto’s eastern waterfront.

For a plan that was supposed to provide “innovative” solutions to mobility and data governance, among other issues, there is a strong–and highly problematic–reliance upon traditional top-down governance mechanisms and public funding.

The issues discussed in this post should raise serious alarm bells for policymakers at the municipal, provincial and even federal levels of government, as well as among the general public, and force a reconsideration of this project.

References

Open Data Institute. (2019). Data Trusts.

Sidewalk Labs. (2019). Master Innovation and Development Report. Chapter 5: Digital Innovation.

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Liveblogging Sidewalk Labs’ Master Innovation and Development Plan, Bonus entry 3: What responsible public consultations look like, and why the Quayside consultations are not that

Previous Master Innovation and Development Plan liveblog entries available here

As a former federal parliamentary committee staffer, who has helped organize my fair share of consultations and who has written many reports on said consultations, it’s been professionally painful witnessing the amateurish chaos storm engulfing the consultations over Sidewalk Labs’ plans for Toronto’s Eastern Waterfront.

To understand exactly how unhelpful the Waterfront consultation process is, imagine for a moment that Sidewalk Labs were a government agency proposing this development, and that a parliamentary committee (Waterfront Toronto) were charged with reviewing it.

In this scenario, the agency would submit its report to the committee, and the worker bees (i.e., me and my colleagues) would begin analyzing it for the committee. The committee clerk, under direction from the committee members, would start scheduling hearings. The hearings would probably begin with agency officials being questioned (in public) about the proposal, followed by public consultations, their intensiveness and extensiveness being determined by the nature of the proposal.

Then, we worker bees would prepare a report and recommendations based on what the committee had heard, and the parliamentarians would discuss and amend the committee report as needed. This report would be used as the basis for adjusting, if needed, the agency’s proposal.

This process could also easily incorporate a review of the revised proposal. For Parliament, it’s up to the government to accept or reject the committee’s recommendations, so this would likely rarely happen, but it’s a logical addition to the Waterfront Toronto-Sidewalk Labs review.

Anyway, that’s what you’d likely see when the system is working: proposal; public consultations; report on the proposal with suggested amendments; final proposal; brief review; final decision.

What not to do

What you would not see is:

  • the committee (i.e., Waterfront Toronto) issuing a de facto preliminary report days after the agency proposal had been submitted, and before the consultations had started.
  • the agency (i.e., Sidewalk Labs) flatly contradicting the committee’s opinion as expressed in said unorthodox preliminary report.
  • the agency conducting its own, post-submission de facto hearings, especially under a name (in this case, Sidewalk Toronto) that will appear to some as if the hearings are being held by the committee.
  • public consultations held before anybody had had a realistic opportunity to analyze the report.
  • a final committee report based on a draft proposal and rushed, inadequate public consultations.
  • a substantive round of consultations, post-committee-report and post-final-draft, in which the public would have to assess both the committee report’s adequacy and the agency’s final proposal.

Of course, nothing about this Quayside/Eastern Waterfront development project is normal. As originally conceived, Waterfront Toronto and Sidewalk Labs were/are the co-developers of this project. In this scenario, it would make sense for the two to take their proposal to the public and then modify it based on public and government consultations.

This fundamental dysfunction, in which one partner to the project is seeking the veneer of impartiality and the other can’t stop running public-relations plays, is driving this broken process.

And so we have an ill-advised preliminary report and rushed formal consultations, and Sidewalk Labs holding its own de facto consultations and publicly challenging its partner/overseer.

It’s a mess, but it’s the kind of mess you’d expect when you muddy the distinction between regulator and regulated with absolutely no regard for basic principles of good governance and accountability. To my eyes it’s yet another indication that this entire project is fundamentally unworkable.

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Liveblogging Sidewalk Labs’ Master Innovation and Development Plan, Bonus entry 2: On poorly designed consultations, conflicts of interest, cheating on the test, and getting to know your business partner

Previous Master Innovation and Development Plan liveblog entries available here

A quick follow-up to Tuesday’s post regarding the, shall we say, haphazard consultation process Waterfront Toronto has convened around Sidewalk Labs’ Master Innovation and Development Plan. Way back then, some 48 hours ago, I was concerned about the ineffectiveness of holding two weeks of consultations in the depths of summer, which would be used to shape some indeterminate Fall consultations.

Such short consultations on such a comprehensive report, which this series will get to eventually (promise!) and which is almost custom-designed not to be read or understood, seems a sure-fire way to ensure that the only responses you’ll get are rushed analyses from people with the ability to invest the week or so needed to ingest the report, or superficial and/or self-interested takes from people who haven’t done their homework.

Ah, those bygone, innocent times.

Now, thanks to James McLeod’s excellent and mind-boggling article in yesterday’s National Post, my initial bafflement and concern has been upgraded to incredulousness. Here’s the current iteration of Waterfront Toronto’s plan– only parts of which, it cannot be emphasized enough, were included in either its webpage or in the pages of its Note to Reader dealing with public consultations, as best as I can figure, but who knows? Waterfront Toronto is either making this up as they go along or not bothering to communicate their plans precisely with the public:

  • July 25: Waterfront Toronto concludes its in-person consultations.
  • July 31: Last chance to submit responses to its online surveys for inclusion in its September report.
  • September: Waterfront Toronto publishes its response to the MIDP “pulling together criticisms and concerns based on public commentary and responses from the various levels of government.”
  • Next step: Sidewalk Labs responds to Waterfront Toronto’s report with a final MIDP
  • Then: Waterfront Toronto holds another round of public consultations.
  • And finally: Waterfront Toronto performs “an assessment on the final document, and make a recommendation to the board of directors.”

If anything, this process is worse than the one briefly set out in the Note to Reader,  even without commenting on the wildly optimistic deadlines of late 2019/early 2020 they’ve set for themselves.

The Note to Reader made it sound like these summer hearings were basically a public temperature-taking, with the more in-depth consultations to be held in the Fall. In that plan, the biggest problem was that Waterfront Toronto would “include a report on the public feedback during Round One” (p. 47).

Now, it turns out that these rushed, wholly inadequate two-week consultations will feed into Waterfront Toronto’s actual response to the MIDP. The Round Two consultations will actually be focused not only yet another version of the MIDP, but will also have to address whether or not Waterfront Toronto’s response to the draft MIDP was adequate. Which means we will have to go through this entire nonsense again, times two.

This process is absolutely bonkers. If one were actually interested in legitimate, informative public consultation, the consultations would begin in September. This would allow both the public and Waterfront Toronto (which admits has not yet had enough time “to work through and consider the Draft MIDP” (Note to Reader, p. 47)) to take enough time out of their holidays to digest this index-deficient one-thousand-five-hundred-page, four-volume report. Consultations would be extensive, with several sub-rounds of meetings on each part of the report.

Only then, based on Waterfront Toronto’s analysis and public input, would Waterfront Toronto issue its report. Sidewalk Labs would then respond, and Waterfront Toronto could hold a brief second round of hearings addressing the specific changes Sidewalk Labs proposed. Then, based on all that, its Board could decide whether or not to proceed.

This is not that complicated.

Instead, we currently have a process that minimizes both the quality and quantity of up-front public input, and that effectively forces those of us who are deeply engaged in the process, most of whom also have lives outside of this bureaucratic rollercoaster, to double the amount of time we’re devoting to a file whose parameters seem to change on a daily basis. After all, why should I waste my time rushing to finish this unreadable monstrosity in the next seven days, and then spend a day filling out Waterfront Toronto’s survey if there is going to be a second round of consultations?

I’ve been spending most of my working days for the past couple of weeks on Sidewalk Labs-related work, and I’m almost certainly not going to be finished by July 31.

Even Bianca Wylie, who has devoted more time than any other non-Sidewalk Labs/Waterfront Toronto person to this project, is still working her way through the report (according to her tweets). If, 12 days from the consultation deadline, this project’s most attentive critic is still working her way through it, what hope do other Torontonians have of being able to come up with a reasoned opinion by the end of the month?

On a personal note, I fear that this project is turning me into Tristram Shandy.

Waterfront Toronto’s secret judgment criteria

As an added bonus, Waterfront Toronto apparently will not be releasing the criteria it will be using to evaluate the MIDP because, in the words of Waterfront Toronto senior vice-president for project delivery Julius Gombos, “it would be giving away the examination papers to the class before we had the test.”

Which makes absolutely no sense, in any way. This isn’t about testing whether Sidewalk Labs has been paying attention in class; it’s about ensuring that they are delivering what Waterfront Toronto, the customer, is ordering. You should want Sidewalk Labs to see the answers.

It’s also about accountability. Beyond Sidewalk Labs, you should want the public to know how you’re evaluating its proposal, so that we can tell if Waterfront Toronto is asking the right questions. And also to ensure that everything is being done on the up-and-up because, to be blunt, Waterfront Toronto does not have a lot of credibility when it comes to this project.

Partner or oversight agency? Waterfront Toronto’s already made its choice

More news from McLeod’s article: If only boneheaded scheduling decisions were the worst of Waterfront Toronto’s missteps. It also faces a fatal legitimacy-challenging conflict of interest:

Originally Waterfront Toronto worked cooperatively with Sidewalk Labs on research and generating ideas for the new neighbourhood, but last year the federal-provincial-municipal agency repositioned itself as an oversight agency, assessing the MIDP.

Here’s the thing. Waterfront Toronto can’t simply “reposition[ ] itself as an oversight agency.” The Plan Development Agreement (which I’ll cover in Monday’s post, so, spoilers), signed by Waterfront Toronto and Sidewalk Labs on July 31 of last year, commits the two organizations to deep cooperation, including the joint preparation of the MIDP.

When in the “last year” did Waterfront Toronto make the decision to alter the nature of its relationship with Sidewalk Labs? I’ve been following this story pretty clearly and I don’t recall hearing about it. As far as I know, the Plan Development Agreement – again, which is not even a year old – was never amended or superseded.

And even beyond this legalese, this “close contractual relationship,” as McLeod calls it, emerged from the incredibly tight relationship that was apparent from the moment this project was announced. Recall that Will Fleissig, the former Waterfront Toronto CEO who oversaw the RFP and choice of Sidewalk Labs, was forced out by the Waterfront Toronto Board in July 2018 in part because of “his oversight of a decision to allow Sidewalk Labs personnel to temporarily occupy office space in the Waterfront Toronto headquarters.”

Legally, the two are joined. They have a deep, intertwined history, by design. These conflicts of interest are insoluble, meaning Waterfront Toronto cannot act as an independent arbiter of the MIDP. This relationship was never on the table.

I can’t help but think that some Waterfront Toronto employees know all this, that these consultation contortions are being driven by the realization that the original Request for Proposals, conducted under a previous CEO, was fatally flawed. The RFP has placed Waterfront Toronto in an untenable governance situation, opening a Pandora’s Box that previous leadership perhaps thought they could control. As much as anything else, inertia, rather than basic good governance principles, seems to be driving this very flawed process forward.

Inertia carries the day

In fact, it’s hard to read one final amazing (in a bad way) revelation in McLeod’s article as anything other than an exercise in path-dependent damage control. Apparently Waterfront Toronto is tracking Google’s “corporate conduct.”

(Note: the article refers to Alphabet, which is formally Google and Sidewalk Labs’ parent company, but for all practical purposes, Alphabet is Google.)

Kristina Verner, vice-president of innovation, sustainability and prosperity at Waterfront Toronto, said that the public agency has been keeping tabs on Alphabet’s corporate conduct.

“Certainly, Sidewalk itself is a relatively new company; that being said, it is a child of Alphabet,” Verner said.

“All of the infractions, all of the violations that have been reported over the last few years, and before then, we actually have a tracker where we’ve been documenting all of that, so we have our eyes fully open as well.”

Verner said that tracking Alphabet’s corporate behaviour is important in order to have a clear sense of who they’re dealing with “when we discuss what the partnership looks like, and the ethical underpinning of it.”

To which one can only say, how could Waterfront Toronto not possibly already have “a clear sense” (McLeod’s paraphrasing of Verner) about what type of company Google is? It’s one of the biggest companies on the planet! A quick Yahoo! search reveals this 2012 Wired article, titled “Google is Evil.” Or how about “Top 10 Ways Google Does Evil,” published mere weeks before Sidewalk Labs officially won the RFP?

And that’s just general Google bad behaviour. Much more relevant for Waterfront Toronto is Google’s behaviour toward a couple of other acquisitions. DeepMind Health (a UK health AI company), and Nest (smart appliances) were initially treated as Google sister companies before being absorbed into Google itself, raising privacy and data-governance concerns.

Given everything we know, any responsible analysis has to assume that Sidewalk Labs is Google.

It strains credulity to think that anyone at Waterfront Toronto in 2017 would not have been aware about the type of company Google is.

So, the question for Waterfront Toronto is, given “all of the infractions, all of the violations” that you have been tracking, given all that we know about Google, why do you think that they can be trusted to develop Toronto’s Eastern Waterfront?

It’s a question that should’ve been asked in 2017, but better late than never.

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