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Legal Research Digest 25 TRansiT CoopeRaTive ReseaRCh pRogRam sponsored by the Federal Transit administration april 2008 Subject Areas: IA Planning and Administration; IC Transportation Law; VI Public Transit TRanspoRTaTion ReseaRCh BoaRD OF THE NATIONAL ACADEMIES PrIVACy ISSueS wITh The uSe of SmArT CArdS This report was prepared under TCRp project J-5, âLegal aspects of Transit and intermodal Transportation programs,â for which the Transportation Research Board is the agency coordinating the research. The report was prepared by paul stephen Dempsey, Tomlinson professor of Law, mcgill University, montreal, Quebec, Canada. James B. mcDaniel, TRB Counsel for Legal Research projects, was the principal investigator and content editor. The Problem and Its Solution The nationâs transit agencies need to have access to a program that can provide authori- tatively researched, specific, limited-scope studies of legal issues and problems having national significance and application to their businesses. The TCRP Project J-5 is designed to provide this insight. The intermodal approach to surface trans- portation requires a partnership between transit and other transportation modes. Transit attorneys have noted that they par- ticularly need information in several areas of transportation law, including environmental re- quirements; construction and procurement con- tract procedures and administration; civil rights and labor standards; and tort liability, risk man- agement, and system safety. In other areas of the law, transit programs may involve legal problems and issues that are not shared with other modes; as, for example, compliance with transit equipment and opera- tions guidelines, Federal Transit Administra- tion (FTA) financing initiatives, and labor or environmental standards. Applications Smart Cards are credit card-sized plastic cards that contain embedded technology en- abling an electronic link between the card and the transit providerâs reader equipment. The cards allow for a very fast transfer of informa- tion that transit providers need to collect their fees. Using Smart Cards to replace traditional transit tickets or tokens reduces cash handling, equipment maintenance, and security costs. Smart Cards hold the promise of increasing convenience for riders, improving collection of ridership data, lending a more modern image to transit, and providing new opportunities for in- novative fare structures and marketing. In March 2000, TCRP published Legal Re- search Digest 14: Treatment of Privacy Issues in the Public Transportation Industry. TCRP LRD 14 contains a historic and general over- view of privacy in the field of public transporta- tionâexamining privacy issues associated with employment, as well as those associated with customers of public transportation. It also noted the beneficial use of a Smart Card data collec- tion system to transportation planners. Subse- quent to this publication, particularly after the terrorist events of September 11, 2001, public consciousness regarding privacy as it relates to the use of Smart Cards changed. The plea for a higher level of security has supported the rapid growth in technological enhancements and uses of the Smart Card. This digest examines basic privacy issues as- sociated with the acquisition and storage of fi- nancial and trip data, including, but not limited to, who can access the data, what data may be accessed and under what conditions, and how the information can be used. As such, it should be useful to attorneys, administrators, human relations officers, security personnel, financial officers, and others. responsible Senior Program officer: Gwen Chisholm Smith CONTENTS I. Introduction 3 A. The Potential Uses and Abuses of Smart Cards 3 B. Examples of Smart Card Utilization 4 C. Advantages of Smart Cards 5 D. Disadvantages of Smart Cards 6 II. The Evolution of Concerns Over Privacy and Security Since September 11, 2001 (9/11) 9 III. Federal Privacy Law 10 A. Constitutional Law 10 B. Federal Statutes 14 C. Administrative Practice 16 IV. State Privacy Law 17 A. Constitutional Law 17 B. Common Law 17 C. Statutory Law 17 V. Transit Agencies and Smart Cards: Policies and Procedures Governing Information, Access, and Use 18 A. Transit ID Cards 18 B. Transit Agency Procedures 20 C. Suggestions for Access to Collected Information 21 VI. Conclusion 23