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Weekly UpdatesAlternatively, a consumer concerned about privacy could purchase a prepaid disposable phone, which would allow the consumer to call anonymously and still have the safety benefits of the E-911 mandate. (122) However, this solution does not allow the consumer the full benefits of using a cell phone for other uses, such as a PDA, or new features such as paying for items from a cell phone. (123)
Qualcomm and Lucent have developed phones that allow the user to turn off the location tracking from the handset. (124) However, it is not clear whether the location is simply not shared with third parties or not available to the wireless carrier. ClickaDeal.com, a company designed to provide location-based coupons, has indicated that its company will purge users' location information every hour so that it does not have a history of consumers' movements. (125)
Although these options are encouraging steps towards the protection of consumers' location information, they are incomplete solutions. First, consumers still lacks a remedy if the product fails. Second, in most circumstances, location information may still be shared and analyzed indefinitely. Therefore, the technological advances are encouraging but insufficient to adequately protect or allow control over location information.
All of the current mechanisms available to protect individuals' location information are insufficient. The Constitution provides no individual protection against private industry, Section 222 of the 1996 Act provides minimal protection, and it is unclear if Section 5 of the FFC Act provides any protection to the individual. As the law now stands, the individual cannot prevent a wireless carrier from collecting and storing personal location information that may be used at a later date or even shared with the government.
V. NEW AMENDMENTS TO SECTION 222 OF THE 1996 ACT ARE NEEDED
Cell phones are being used for more and more purposes every day. Today's cell phones are used to send text messages, to send and receive email, to access the Internet, to receive Amber Alerts, to track employees and children, and to take pictures and video. Cell phones are used as personal organizers, walkie talkies, and MP3 players. Cell phones will soon be used to purchase items, to check competitor's pricing, and to translate language. (126) With so many uses and the added benefit of the E-911 mandate, it is not hard to imagine that most people will take their cell phone with them wherever they go.
This location-tracking technology that follows the movements of your cell phone can soon create a detailed map of everywhere you have gone, when you went there, and who was with you at the time. This information has value and consumers should control its use. (127)
As the law now stands, consumers will inevitably be faced with the decision to receive enhanced location-based services in exchange for their right to their personal location tracking-information. Since most people do not bother to read the privacy notice, it is unlikely that consumers will object. (128) This is especially true if the provision is included in the initial contract for service. Furthermore, if consumers do object, there is no bargaining power on their behalf. Therefore the consumer is left with a take-it-or-leave-it option.
Legislation is needed to help protect people who cannot protect themselves. Further amendments to Section 222 will allow increased consumer privacy without significantly inhibiting the free flow of information and technological growth. Legislation should prevent wireless carriers and third-party service providers from collecting and storing personal location data beyond what is needed for billing purposes. The goal of the legislation would be to prevent the wireless carrier, third parties, and the government from having a historical database of everywhere individuals go. Once this information is collected and combined with other personal information, virtually all individuals with a cell phone will lose all personal privacy with respect to the places they go and the people they visit.
Therefore, Congress should amend Section 222 of the 1996 Act to provide individuals with protection of their personal location information that they cannot achieve on their own. Three additions to the 1996 Act will ensure consumers that their private personal location information can be protected in most circumstances and still allow wireless carriers and third parties to provide additional location-based services.
First, the legislation should add a strict liability element for unauthorized access to personal location information. Adding a phrase to Section 222 such as, the wireless carrier and approved third-party providers "shall take such actions as are necessary to prevent unauthorized access to such [personally identifiable] information by a person other than the subscriber ... [,]" wireless carrier, or third-party provider. (129) The emergency exceptions in Section 222 should continue to apply. This language allows the service provider to determine the means for preventing unauthorized access, while imposing liability for failure to accomplish the objective. This strict liability for disclosure will be subject to the exceptions presently in Section 222. However, it would provide clear language for enforcement of a violation.
Second, Section 222 should include a "destruction of information" requirement. It should state that the wireless carrier and third-party service providers "shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected." (130) This would prevent the wireless carrier and third-party service providers from collecting and storing information regarding a location a person visits. However, it would still allow for the collection of information for billing purposes and providing location-based services. This addition to the statutory language would also solve the problems of inadequate notice and choice by limiting the collection, storage, and distribution of location information.
Finally, Section 222 should add sections regarding civil action damages, attorney fees costs, and punitive damages. This would allow an individual wronged by an act of a wireless carrier to bring a civil action in federal court. The court should award damages that are higher than actual damages--but set at some minimum level--and should allow punitive damages and reasonable attorney fees. By granting a remedy to the customer, the wireless carrier and third-party service providers will be held accountable for violations of the improper collection and disclosure of the personal location information, but will not be inhibited from developing and using LBS.
By implementing these amendments to Section 222, the goals of increased information flow and individual privacy can be effectively reached. Individuals can be assured of the protection of their personal location information and can take the necessary actions for infringement of their privacy. The strict liability language of the statute will allow service providers to compete on a level playing field. Wireless carriers and service providers can freely develop their own services and compliance requirements without limiting statutory requirements, as long as the end result of personal information protection is reached. This allows the providers to determine the best way to protect individuals' location privacy since the company is held accountable for results, specifically that the location information collected to provide the LBS will be destroyed on a timely basis.
VI. CONCLUSION
Privacy means different things to different people. (131) Personal information on consumer habits is very valuable, and it is likely that the wireless industry will seek to extract that value. (132) With cell phones becoming ever more popular, and with the high probability of the cell phone being strongly tied to an individual, the potential for collection of vast amounts of personal data is high. (133) The ability to physically locate an individual who calls 911, saving precious time that will save lives is a great benefit. Many will certainly embrace and use new location-based services for improvement of their lives. However, along with these benefits is the potential for abuse that until now, was not technologically possible. With the ability to locate individuals through their cell phone comes the ability to track that individual virtually everywhere they go. Although technological advances are eroding individual privacy, the potential loss of privacy through cell phone tracking is enormous.
To effectively address this concern, further legislation is needed. Three additions to Section 222 of the 1996 Act will provide individuals with assurance that their location information will be protected. First, by adding a strict liability requirement for unauthorized access to the location information, security of the location information can be enforced. Second, a destruction of information requirement will prevent unlimited collection of location information. Finally, by adding a personal cause of action with punitive damages, the individual can take affirmative action in the event of a violation of the 1996 Act.
Personal privacy is being eroded on all sides. Technological advances have improved our lives in many ways; however, the advances have also increased the means and ways of collecting and storing information on individuals. Since cell phone services are unique in that they have the ability to track your location throughout each day, cell phones pose a unique security and personal privacy risk. In order to ensure that personal privacy is not completely removed, additional legislation for personal location information is needed.
(131.) Cate, supra note 20, at 2.
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