Private eyes are watching you: with the implementation of the E-911 mandate, who will watch every move you make?(Telecommunicati

(132.) Id. at 6.

(133.) PUBLIC WORKSHOP, supra note 10, at 11-12.

\

(1.) Kathryn Balint, Cell Phones Can Leave 911 Operators Guessing, COPLEY NEWS SERV., Nov. 7, 2004.

(2.) Id.

(3.) Id.

(4.) Id.

(5.) Steven Isbitts, Counties Quiet About 911 Cell Phone Tracking, TAMPA TRIB., Oct. 2, 2003.

(6.) Id.

(7.) Id.

(8.) Id.

(9.) Balint, supra note 1.

(10.) FTC, PUBLIC WORKSHOP: THE MOBILE WIRELESS WEB, DATA SERVICES AND BEYOND: EMERGING TECHNOLOGIES AND CONSUMER ISSUES 9 (2002) [hereinafter PUBLIC WORKSHOP].

(11.) Id.

(12.) Request by Cellular Telecommunications and Internet Association to Commence Rulemaking to Establish Fair Location Information Practices, Order, 17 F.C.C.R. 14382, para. 7 (2002) [hereinafter CTIA Request].

(13.) Aaron Renenger, Satellite Tracking and the Right to Privacy, 53 HASTINGS L.J. 549, 552-53 (2002).

(14.) David Colker, Big Brother Really is Watching with GPS, L.A. TIMES, Jan. 7, 2005; George Brandon, New Cell Phones Let Firms Track Workers, KIPLINGER BUS. FORECASTS, Dec. 29, 2004.

(15.) PUBLIC WORKSHOP, supra note 10, at 8.

(16.) The government is relevant to the concerns of private company access. While the fourth amendment provides some protection from government intrusion into private affairs, this is less so after U.S. v. Miller. In U.S. v. Miller, 425 U.S. 435 (1976), the Supreme Court held that financial records controlled by a third party were not protected by the Fourth Amendment. Id. at 443. Therefore, the government was able to collect indirectly what it would not constitutionally be allowed to collect directly. The Court stated that since the individual voluntarily gave the information to the third party, the government could obtain that information from the third party. Therefore, the same principle would likely apply here, if the wireless carrier is able to store the movements of your cell phone, now the government can obtain that information from your wireless carrier with a record of, inter alia, all your movements and daily habits.

(17.) Id. at 10; CTIA Petition for Rulemaking to Establish Fair Location Information Practices, Reply Comments of Electronic Privacy Information Center, at 8 (2001), http://www.epic.org/privacy/wireless/epic_reply.pdf.

(18.) CTIA Request, supra note 12, para. 1.

(19.) Ellen Traupman, Who Knows Where You Are? Privacy and Wireless Services, 10 COMMLAW CONSPECTUS 133, 152 (2001).

(20.) Fred H. Cate, The Privacy Problem: A Broader View of Information Privacy and the Costs and Consequences of Protecting It, 4 FIRST REP. 1, 3 (Mar. 2003), available at http://www.freedomforum.org/ templates/document.asp?documentID=17631.

(21.) Id.

(22.) Id.

(23.) Id. at 4.

(24.) Id. The privacy torts only apply when the information is "highly offensive to a reasonable person" and either false or of no "legitimate public concern." Id.

(25.) Cate, supra note 20, at 4-5.; James C. White, People, Not Places: A Policy Framework for Analyzing Location Privacy Issues 1 (Spring 2003) (unpublished M.A. Thesis, Duke University), http://www.epic.org/privacy/location/jwhitelocationprivacy.pdf; Renenger, supra note 13, at 558.

(26.) Cate, supra note 20, at 4.

(27.) White, supra note 25, at 7.

(28.) Cate, supra note 20, at 4; Renenger, supra note 13, at 555-56; see also Fred H. Cate & Robert Litan, Constitutional Issues in Information Privacy, 9 MICH. TELECOMM. TECH. L. REV. 35, 40 (2002).

(29.) Cate, supra note 20, at 4.

(30.) See Care & Litan, supra note 28, at 62.

(31.) Id.

(32.) Id.

(33.) FCC, Enhanced 911--Wireless Services, www.fcc.gov/911/enhanced (last visited Apr. 21, 2006).

(34.) See Cate & Litan, supra note 28, at 62.

(35.) Cate, supra note 20, at 5.

(36.) U.S. West, Inc. v. FCC, 182 F.3d 1224, 1229 (10th Cir. 1999); Waseem Karim, Note, The Privacy Implications of Personal Locators: Why You Should Think Twice Before Voluntarily Availing Yourself to GPS Monitoring, 14 Wash. U. J.L. & Pol'y 485, 498 (2004). Customer proprietary network information is defined as:

47 U.S.C. [section] 222(h)(1) (2000).

(37.) U.S. West, 182 F.3d at 1230. An opt-in regulation requires the user to take affirmative steps in order for the business to use the individual's personal information. An opt-out regulation allows the business to use the individual's personal information unless the individual takes affirmative steps to prevent the business from using his or her personal information. Since most people do not take affirmative action either way, the default setting determines the category that the majority of consumers fall under. See Tranpman, supra note 18, at 139.

(38.) U.S. West, 182 F.3d at 1230.

(39.) Id.

(40.) Id.

(41.) Cate, supra note 20, at 12 (quoting U.S. West, 182 F.3d at 1235).

(42.) David J. Phillips, Beyond Privacy: Confronting Locational Surveillance in Wireless Communication, 8 COMM. L. & POL'Y 1, 13-14 (2003).

(43.) CTIA Request, supra note 12, para. 2.

(44.) Id.; 47 U.S.C. [section] 222(h).

(45.) CTIA Request, supra note 12, para. 2 (quoting 47 U.S.C. [section] 222(f)). The three emergency situations where disclosure of personal location information is allowed include: (1) disclosure to an emergency medical service provider, fire service, or law enforcement in response to a call for emergency services; (2) to inform a legal guardian or parent of the location of a child in an emergency involving the death or serious harm to the child; (3) disclosure to database management services "solely for purposes of assisting in delivery of emergency services in response to an emergency." 47 U.S.C. [section] 222(d)(4)(C).

(46.) See CTIA Request, supra note 12, para. 3.

(47.) See CTIA Request, supra note 12 (statement of Michael J. Copps, Comm'r, dissenting).

(48.) See id.

(49.) PUBLIC WORKSHOP, supra note 10, at 11.

(50.) See CTIA Request, supra note 12, para. 1.

(51.) Id.

(52.) CTIA Request, supra note 12, para. 5.

(53.) Id.

(54.) White, supra note 25, at 22.

(55.) FCC, Enhanced 911--Wireless Services, http://www.fcc.gov/911/enhanced/ (last visited Apr. 22, 2006).

(56.) Id.

(57.) Id.; Aaron Futch & Christine Soares, Enhanced 911 Technology and Privacy Concerns: How has the Balance Changed Since September 11?, 2001 DUKE L. & TECH. REV. 0038, para. 4 (2001).

(58.) PUBLIC WORKSHOP, supra note 10, at 10.

(59.) Id. at 4.

(60.) Google, Google Short Message Service, http://www.google.com/sms (providing a service that allows text messages for local business listings, driving directions, movie showtimes, weather updates, and product prices) (last visited Apr. 22, 2006).

(61.) Finding cheap gas via cell phone, WNDU NEWS CENTER 16, Sept. 27, 2004, http://www.wndu.com/news/contact16/ 092004/contact16_37574.php.

(62.) Brandon, supra note 14.

(63.) Id.

(64.) Id.

(65.) Colker, supra note 14.

(66.) Id. The child was traveling over the speed limit heading out of state as the parent watched from the computer at home. The parent called the child and told him to slow down.

(67.) Id.

(68.) E.g., Renenger, supra note 13, at 553, 557.

(69.) Kristen E. Edmundson, Note, Global Positioning System Implants: Must Consumer Privacy Be Lost in Order For People To Be Found?, 38 IND. L. REv. 207, 215 (2005).

(70.) Renenger, supra note 13, at 561.

(71.) Id. at 561-62.

(72.) See id.; see also White, supra note 25, at 25 (discussing Conboy v. AT&T). Despite obvious violations of the Communications Act, Conboy v. AT&T was dismissed on summary judgment because actual damages could not be shown. Since the unauthorized

disclosure of location information may not cause a demonstratable financial harm, the consumer whose information was disclosed is unlikely to survive summary judgment. White, supra note 25, at 25.

(73.) J. HOWARD BEALES, III, BUREAU OF CONSUMER PROTECTION, FTC, THE FTC's USE OF UNFAIRNESS AUTHORITY: ITS RISE, FALL AND RESURRECTION, http://www.ftc.gov/ speeches/beales/unfair0603.htm#N_l_(last visited Apr. 18, 2006).

(74.) In June of 2005, BJ's Wholesale Club settled charges brought by the FTC. The FTC alleged that the wholesale club failed to take appropriate security measures to protect consumer's credit and debit card information. This personal information was used to make fraudulent purchases totaling millions of dollars. See Press Release, FTC, BJ's wholesale Club Settles FTC Charges (June 6, 2005), available at http://ftc.gov/opa/2005/06/ bjswholesale.htm. More recently, in January of 2006, the FTC settled charges against Choicepoint, which included an alleged violation of both the unfairness doctrine and deceptive practices by making promises that it only provided personal information to those who met ChoicePoint's rigorous credentialing process. Choicepoint provided over 160,000 credit reports to an unauthorized subscriber, which resulted in over 800 cases of identity theft. See Press Release, ChoicePoint Settles Data Security Breach Charges; to Pay $10 Million in Civil Penalties, $5 Million for Consumer Redress (Jan. 26, 2006), available at http://www.ftc.gov/opa/2006/01/choicepoint.htm.

(75.) Protecting Consumers' Phone Records: Hearing Before the Subcomm. on Consumer Affairs, Prod. Safety, and Insurance of the S. Comm. on Commerce, Sci., and Transp., 109th Cong. 8 n.21 (2006) (prepared statement of Lydia B. Parnes, Director, Bureau of Consumer Protection, FTC), http://www.ftc.gov/os/2006/02/commission testimonypretexting060208.pdf. See also 15 U.S.C. [section] 45(a)(2).

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