If Facebook asks “What’s on your mind?” and Twitter asks “What’s happening?” who will ask “Where are you?” Well, it turns out that there may be no need to ask that question if an app on your smartphone is already reporting your location to others.

Geolocation

Geolocation is the practice of determining the location of an object such as a mobile phone. The output of the analysis is a set of geographic coordinates or other information to infer present, future or historical location. The locating engine typically uses radio frequency methods. GPS is usually associated with geolocation, but cell tower triangulation, Wi-Fi networks, or a combination of all is also used.

Privacy

Governments have made significant advances in requiring telecommunications providers to protect user information such as caller’s telephone number and address, duration of calls, and numbers called. However, geolocation information is still largely unprotected, and it is increasingly easy for governments, telecommunications providers, and others to collect. Yet, it is difficult for citizens to realize that someone might be tracking them.

Nowadays, it is not only smartphones that can report geolocation information. Other consumer devices such as cameras are now being equipped with this capability.

Take for instance the recent case of a member of the hacking group CabinCr3w who was caught after posting online a photograph taunting the FBI. Unbeknownst to this person, the posted image contained encoded GPS coordinates of his location at the moment he took the picture.

Generally, there is no concise requirement that a consumer be notified that geolocation is being shared with third parties. While certain applications have privacy settings, there is still no guarantee that this information will not be shared without one’s knowledge. Adding to this problem, some users may not find or understand the privacy settings on their mobile devices.

Geolocation Legislation

Countries are taking varying measures to address this issue. The European Union, though the article 29 Working Party, released an opinion stating that geolocation information is personal data. This means that in Europe, this information can only be collected with the people’s express consent. In other jurisdictions, such as in Mexico, federal agencies have been empowered with the ability to request geolocation information from mobile providers. In the United States, the Federal Trade Commission has urged Congress to pass legislation to protect mobile data, recommending that third-party brokers disclose to consumers all information they hold on them.

Members of the U.S. Congress have also introduced several bills on this topic. One such measure, the Geolocation Privacy and Surveillance Act, would have required the government to show probable cause and secure a warrant before collecting geolocation information from a U.S. person, with exceptions granted in cases relating to national security, theft or fraud. This bill, however, was defeated.

Recently, another bill has been introduced to update the 1986 Electronic Communications Privacy Act that would require government agencies to obtain a warrant in order to intercept or force service providers to turn over geolocation data. This bill would prohibit service providers from supplying geolocation data without a warrant.

Another bill that has been introduced is the Online Communications and Geolocation Act, which would prohibit any governmental entity from intentionally intercepting, disclosing, or using geolocation information without a warrant. The bill provides exceptions when an individual has given prior consent or to assist an individual when his or her safety is in jeopardy. Another exception is provided for foreign intelligence surveillance.

Conclusion

The protection of geolocation information is the next privacy frontier. The growth of cloud-based services and the proliferation of consumer devices with built-in tracking capability have caused privacy advocates to voice serious concerns. On the other hand, telecommunications service providers should take a special interest in this topic since excessive regulation can impede innovation. As in everything, it is important to strike the right balance.

, Raul Magallanes runs a Houston-based law firm focusing on telecommunications law. He may be reached at +1 (281) 317-1397 or by email at raul@ rmtelecomlaw.com.