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Senate Judiciary OKs Franken's Smartphone User Location Tracking Privacy Legislation

Monday, December 17, 2012

The Senate Judiciary Committee Dec. 13 approved on a voice vote a manager's substitute bill (S. 1223 substitute) to protect the privacy of mobile device users' geolocation data.

Under S. 1223, the Location Privacy Protection Act, mobile device service providers would be required to get prior consent from customers before collecting their geolocation information or sharing it with third parties.

The measure was introduced in June 2011 by Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) (10 PVLR 901, 6/20/11).

In advance of a Dec. 6 committee business meeting, Franken, who chairs the Senate Judiciary Subcommittee on Privacy, Technology and the Law, said the bill would close loopholes in the 1986 Electronic Communications Privacy Act (ECPA) that allow smartphone, mobile application, and wireless companies offering internet services to furnish location information to nongovernmental third parties, without the permission of customers (11 PVLR 1765, 12/10/12).

The bill includes provisions designed to prevent so-called “cyberstalking” by third parties that obtain the personal geolocation information of others.

On Nov. 29, the committee passed related legislation (H.R. 2471 substitute) to amend ECPA by requiring the government to obtain a search warrant anytime it is seeking access to an individual's email messages or other electronic communications (11 PVLR 1702, 12/3/12).

Both the ECPA bill and the Franken measure are expected to inform legislative efforts in the 113th Congress, which begins in January 2013.

Manager's Amendment Changes.

Franken's manager's amendment to S. 1223, which was substituted by unanimous consent, made several additions to the text of the bill as introduced, including new provisions:

• requiring notice on mobile devices on how the user may revoke consent to the collection and use of geolocation data;

• expanding and clarifying the definitions of covered information;

• providing a list of information not covered by the proposed law, such as an individual's name, address, telephone connection data, and means of payment for telecom services;

• detailing exceptions to the proposed law for geolocation data collection to protect the rights and property of a covered entity, protect customers from fraud, and respond to legitimate law enforcement and national intelligence requests;

• requiring that if geolocation data are to be shared in response to a court order in a civil proceeding, the targeted individual be given advance notice and an opportunity to challenge the order; and

• adding an absolute 10-years-after-an-alleged-violation statute of limitations for individual lawsuits under the proposed law to supplement the two-years-after-discovery-of-the-violation statute of limitations.

 

The substitute amendment also dropped a section from the bill as introduced that would have added penalties for the sale of geolocation information of children under the age of 11.

In a Dec. 13 statement, Franken stressed that the bill would still prohibit the use of children's geolocation data without their parents' permission. He noted that such protections are clearly needed, given the Federal Trade Commission's recent report on mobile applications for children that found many misled young people about how their personal data would be collected and used (see related report in this issue).

Sen. Charles Grassley (R-Iowa), ranking member of the committee, unsuccessfully sought an amendment that would have required state attorneys general pursuing any court action under federal law, including enforcement of S. 1223, to notify the court if they hired private counsel to represent the state, cite their authority to do so, and reveal the terms of any such agreement.

Grassley's proposed amendment failed on a 8-9 roll call vote.


Full text of the manager's substitute amendment for S. 1223, as passed by the Senate Judiciary Committee, is available at http://op.bna.com/pl.nsf/r?Open=dapn-92yltp.

Full text of Sen. Grassley's unsuccessful amendment to S. 1223 is available at http://op.bna.com/pl.nsf/r?Open=dapn-92ylvc.

Full text of S. 1223, as introduced, is available at http://op.bna.com/pl.nsf/r?Open=dapn-8hvtmb.

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