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Weekly UpdatesDespite the common difficulty in articulating a specific harm, "the dominant trend in recent and pending privacy legislation is to invest consumers with control over information in the marketplace, irrespective of whether the information is, or could be, used to cause harm." (35) Since the individual lacks both constitutional and common law protection, any control over personal location information must come through statutory law.
III. LEGAL HISTORY OF FEDERAL REGULATION FOR CELL PHONE LOCATION INFORMATION
A. Telecommunications Act of 1996 and U.S. West v. FCC
In 1996, Congress passed Section 222 of the 1996 Act requiring customer approval before distributing customer proprietary network information ("CPNI") to third parties. (36) In 1998, the FCC created an opt-in regulation to clarify the way in which companies could obtain customer approval. (37) The regulation required the wireless carrier to obtain "prior express approval from a customer through written, oral, or electronic means before using the customer's CPNI."
One year later, U.S. West challenged the FCC's opt-in regulation as an undue restriction on commercial speech under the First Amendment. (39) Furthermore, U.S. West argued that the regulation raised Fifth Amendment concerns as the CPNI was valuable property belonging to U.S. West. (40) The Tenth Circuit Court of Appeals determined that the regulation was "presumptively unconstitutional unless the FCC could prove otherwise by demonstrating that the rules were necessary to prevent a 'specific and significant harm' to individuals, and that the rules were 'no more extensive than necessary to serve [the stated] interests.'" (41) The FCC subsequently adopted the less restrictive opt-out standard, requiring customers to contact the wireless carrier to prevent their personal information from being distributed to third parties. (42)
B. Wireless Communication and Public Safety Act of 1999
The 1999 Wireless Communications and Public Safety Act ("WCPSA") amended Section 222 of the 1996 Act. (43) The definition of CPNI in Section 222(h) was amended to include "location" as information that carriers must protect. (44) Congress also added Section 222(f) which "restrict[s] carriers' authority to access, use, or disclose wireless location information 'without the express prior authorization of the customer,' except in three specifically established emergency situations." (45)
In 2000, the Cellular Telecommunications and Internet Association ("CTIA") petitioned the FCC to create regulations clarifying the Section 222 amendments. (46) CTIA expressed concern over how "express prior authorization" would be defined and argued that the lack of clarity would slow the adoption of location enabled services. (47) The CTIA petition sought to ensure that wireless consumers are (1) informed of location information collection (notice), (2) given the opportunity to consent to collection of the location information (choice), and (3) assured the location information is secure and accurate (access and security). (48) Further criticism was aimed at the limited protection in the amendment against redisclosure of location information by third parties who have access to location information through the wireless provider. (49)
Despite the concerns voiced by privacy advocates, in 2002, the FCC formally declined to adopt regulations for the Section 222 amendments. (50) The FCC concluded that the statutory language was not ambiguous "Because the statute imposes clear legal obligations and protections for consumers and because we do not wish to artificially constrain the still-developing market for location-based services, we determine that the better course is to vigorously enforce the law as written." (51)
The order stated that Section 222(f)'s requirement of "express prior authorization" clearly indicates that consumers must give "explicitly articulate approval" (52) (opt-in) before their location information may be used. Therefore no regulations were necessary. (53)
In addition to amending Section 222, the WCPSA also enabled the FCC's E-911. (54) The first phase required wireless carriers to report to a Public Service Answering Point ("PSAP") the telephone number of a wireless 911 caller and the location of the cell tower through which the call was made. (55) The second phase of the E-911 program, which was to be completed by December 31, 2005, requires wireless carriers to locate a cellular phone within 50 to 300 meters of its true location. (56) This initiative requires wireless carriers, public safety agencies, and equipment manufacturers to upgrade their facilities, and the implementation is expected to cost several billion dollars throughout the wireless service industry. (57)
With so much money invested in E-911, it is not surprising that wireless carriers are finding ways to put the service to commercial use. (58) Location-based services are being developed that provide customers with information to traffic, weather, and retail stores based upon their geographical position at any given time. (59) Google has created a test service that allows consumers to search from their mobile phones to find the nearest business and even allows customers to compare prices against the prices of online stores. (60) Others are developing services that allow the consumer to check gas prices at nearby stations so that the consumer can easily go to the station with the lowest price. (61)
Also, businesses have begun using location tracking in cellular phones to keep tabs on their employees and increase productivity. (62) For example, companies have begun monitoring their mobile workforce using cell phones with location tracking technology. (63) The technology allows businesses to monitor their employees, to dispatch them for rush jobs, and even to provide assistance in finding a new customer location. (64)
Likewise, parents are using the technology to keep an eye on their children. (65) Some services will alert the parent if the child leaves a designated area or begins traveling over a designated speed. (66) Additionally, others have used similar services to prevent frantic searches for Alzheimer's patients, and one woman used the technology to catch her husband in a lie: her husband claimed to be working late when he was actually going to the Holiday Inn. (67)
Potential abuses of the technology are not hard to imagine. With many people now carrying a cell phone everywhere they go, wireless carriers can now collect tremendous amounts of information about an individual. Databases could store information regarding every place you have been and, through data processing, can even determine the people you were traveling with at that time.
Uncomfortable uses of the technology have already been suggested. For example, imagine an employer who refuses to hire someone after determining that the candidate routinely visits an AIDS clinic or an insurance company that charges higher rates for those taking part in dangerous activities (e.g., rock climbing, sky diving, or late night bar hopping). (68) Imagine a business that purchases the location information of the salesmen of its primary competitor, instantly gaining access to every company with which the competitor does business. (69) Once location information is distributed to other parties and combined with other personal information, it is hard to imagine any information--other than personal thoughts--remaining private.
Despite the rapid development of commercial uses for location services, there are two important questions that remain unanswered. First, will the opt-in requirement of the Section 222 amendments withstand a commercial speech challenge? Although important, this question is beyond the scope of this Note, but other articles have addressed it. (70) Second, what type of action may a consumer take if a wireless carrier violates the 1996 Act? (71) Imagine a consumer's surprise after agreeing to opt-out of location tracking, only to later learn that his location history has been collected and distributed to third parties and that the consumer has no significant recourse. (72)
C. Federal Trade Commission's Unfair and Deceptive Act
Other areas of federal law also provide little protection for the individual. The FTC uses both it's unfairness doctrine and it's deceptive practices doctrine to prevent injuries to consumers. (73) Recently, the FTC has used the unfairness doctrine to bring charges against businesses that failed to adequately protect sensitive consumer information. (74) However, since location information is included within the definition of CPNI under the Communications Act, the protection of location information by wireless carriers is likely outside the jurisdiction of the FTC' s unfairness doctrine. (75)
Even though the unfairness doctrine is unlikely to apply, the deceptive doctrine should apply to third party service providers and possibly to the wireless carriers. Once the E-911 mandate is implemented, location information is likely to be stored and analyzed by wireless carriers and third parties. (76) The exchange and use of this information may be governed by the carrier's privacy policy and customer agreements, and thereby regulated by the FTC. (77) The FTC has ruled that a violation of the company's privacy statement is an unfair and deceptive practice. (78) Using Section 5 of the FTC Act, the FCC has taken action to enforce companies' promises in their privacy statements to secure personal information. (79)
The FTC uses five principles as a basis for analyzing privacy issues. These principles include: notice, choice, access, security, and enforcement (80) Notice is considered the most important of these principles. (81) Notice requires that a customer is actually aware of the ways in which his personal information may be used. (82) Therefore, notice that is buried in a long service agreement or hidden on a telephone bill would not ensure that the consumer was given sufficient notice.
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