Location and Privacy - What is the New "Reasonable"

Location has arrived – and it is raising all sorts of privacy concerns. In the past few months alone:

1. Facebook launches “Places” and within hours the media and privacy begin criticizing the service as failing to adequately, address privacy concerns.

2. Congressman Bobby Rush introduces legislation that would for the first time regulate on a broad scale the collection, use and distribution of location information on individuals in the U.S..

3. Federal appeals court in District of Columbia finds that the use of a tracking device to monitor a suspect for a month without obtaining a warrant was an an unreasonable search and seizure. This decision directly conflicts other court decisions, with some suggesting that Supreme Court may have to resolve issue.

4. Media reports that citizens on Long Island are complaining that government agencies are acting like Big Brother by using Google Earth to find unpermitted swimming pools in backyard.

5. Government officials in Germany are considering increasing regulations on Google collecting Street View imagery as a result of privacy concerns.

6. Article details how much sensitive information can be obtained from geotagged photos posted on-line.

7. Decision expected from federal court on whether law enforcement needs to obtain a warrant before obtaining location information from mobile phone provider.

8. In Maine, the attorney general struggles whether to allow GPS devices to be attached to citizens' cars by lenders wishing to track vehicle usage for resale of auto loans.

Each of these are examples of how society is grappling with how to deal with the impact of different technologies on the concept of privacy from a location standpoint. As these technologies becomes more ubiquitous, the complexity of the issues are only going to increase. (For example, companies will use software that will predict where you are going to be in the future based upon where you have been in the past.)

I do not know how all this will play out. (Althought I have some ideas!) However, my sense is that this is much bigger - and the conversation should be much broader - than debating such things as whether location privacy settings on Facebook should be opt-in or opt out. What is needed is an informed dialogue and debate on how location technology is changing our lives and which are privacy concerns are legitimate and which are normal reactions to being uncomfortable with the introduction of new technology.

Location technology has the potential to save lives, provide valuable commercial and governmental services and make our planet a better and more sustainable place to live. However, it will never reach its full potential until consistent and transparent laws and policies surrounding location privacy are developed!

Spatial Law and Policy Update (August 23, 2010)

Privacy
Google Street View in Germany - a non-issue
Spain joins countries Probing Street View
Facebook Location and PrivacyFacebook Enters Location
Surveillance Cameras and the Right to Privacy
Maine AG struggles with GPS and consumer rights

Data Quality/Liability
Malware Implicated in fatal Spanish air crash
No Safe Harbors in Argentina
Under Construction
Technology Leads More Park Visitors Into Trouble

Miscellaneous
Good-bye prisons, hello GPS
Twitter After An Emergency - is it reliable?

National Security
India claims Google places parts of Kashmir in Pakistan

Intellectual Property Rights
Important Copyright Case in Australia

Spatial Law and Policy Update (August 16, 2010)

Licensing/Intellectual Property rights
Pirating of Sat Nav Maps in China
Viacom to Appeal YouTube Decision
Bing Adds OpenStreetMap
Does your town, or its consultant, own is GIS data?

Privacy
Maryland to Create Statewide Database for License Plate Readers
Google Earth Used to Find Unpermitted Pools
Web Attack Knows Where You Live
Idea to Use Cameras to Identify Uninsured Drivers Draws Criticism
Consumer Watchdog accuses FBI, DEA of using Google Earth
If Big Brother is Watching, He Needs a Warrant Court Says
Google under probe in South Korea for StreetView collection
Who is watching you behind the wheel?
US issues redesigned, RFID-enhanced "green cards"
DARPA Develops New Privacy Principals
2nd Lower Merion Student sues over "spycam"

Smart Grid
Location Intelligence Crucial for Smart Grid

Intelligent Transportation Systems
Street Smarts

National Security
NGA Awards EnhancedView Contracts

Spatial Data Infrastructures
Malaysia Developing Legal and Policy Framework For Spatial Data

Miscellaneous
GPS: The Future of Authentication?
South Africa and Russia sign Agreement on Earth Observation
Move, Inc. wins real estate mapping patent case over REAL. LTD
Silvio Berlusconi wipes holiday home off Google Earth

Location Privacy: Where Are We Headed?

The following is drawn from a white paper issued by the Centre for Spatial Law and Policy

There has been a great deal of attention paid recently to the privacy issues associated with the collection, use and distribution of personal information by technology companies. For example, Facebook has come under increased scrutiny for the complexity of its privacy settings and for its policies for sharing customer information with third parties. Google has been scrutinized over its Street View collection and also is currently involved in civil litigation on the matter. In addition, Twitter recently entered into a comprehensive and broad-based consent order with the Federal Trade Commission (FTC) regarding its information security practices. The Wall Street Journal covered these and other issues in a week-long series found here. (See here for the article in the series on "cyberstalking").

The privacy associated with location data has been part of this broad discussion. For example, in February the House of Representative held hearings specifically on location privacy as part of a broader review of internet privacy. These hearings resulted in Representative Rick Boucher (D-VA) and Representative Bobby Rush (D-IL) each drafting proposed legislation to protect consumer personal data. Both of these bills defined “precise geolocation information” as sensitive information that is subject to greater regulation with regards collection and use. In addition, Senator John Kerry (D-MA) recently announced that he was preparing legislation to protect consumer privacy

However even in the absence of definitive legislation, companies that collect, use or distribute consumer location data should expect increased scrutiny from the Federal Trade Commission (FTC). Section 5 of the Federal Trade Commission Act grants the FTC broad enforcement authority to protect consumers from unfair trade practices. The FTC appears to have expanded its enforcement actions to protect customer data other than traditionally sensitive information such as credit card information or social security numbers. For example, in a recent enforcement action against Twitter, the FTC found that Twitter failed to provide “reasonable safeguards to protect user information from unauthorized users”. This information included passwords to send messages (“tweets”) but not sensitive personal information. The FTC is apparently trying to warn businesses that even non-sensitive data must be protected if it is stored in a non-public place. (It is also important to note that some of the breaches occurred when Twitter was in its start-up phase)

Given the recent media attention on privacy concerns associated with location data and recent efforts in Congress, it is fair to assume that the FTC is scrutinizing what authority it has with respect to location data. As a result, companies that collect or use location data should begin to closely monitor FTC enforcement actions related to the protection of personal data. In addition, they should consider developing an information security program with respect to such data. Such a program may not only be required by the FTC in the future, but is also good business practice in today’s environment.

How Media Coverage Impacts Expectation of Location Privacy

Companies in the spatial or location technology industry (broadly defined) need to pay close attention to how the issue of location privacy is being covered by the media. Such coverage not only influences consumer expectation and behavior, it will also impact how the technology is perceived by policymakers and regulators. For example, recently there has been a good deal of coverage of the privacy issues associated with a local government in New York using Google Earth to identify pools that are unregistered and the Greek government using it to find people who are avoiding tax payments. Privacy is also frequently identified as an issue in media coverage of technology associated with providing location-based services. Recently, there has been an increase in reports that hackers are able to determine an individual's location based upon their computer or smartphone use. However, there is little discussion about the differences in the technology being used, what expectation of privacy might be impacted, and whether this expectation is even reasonable. Without such a discussion, consumers, policymakers and regulators are likely to make uninformed decisions that could have a negative consequence for a number of companies.