Kevin D. Pomfret
Executive Director
Centre for Spatial Law and Policy
[email protected]
If it bleeds, it leads. So goes the cliché about the mainstream media. Little wonder, then, that news about the far-reaching economic and social benefits of geolocation technology tends to be overshadowed by stories like “Woman Sues Google for Showing Image of Underwear” (The Telegraph) or “How One App Sees Location Without Asking” (Wall Street Journal)
For companies that collect, use or distribute geolocation data, this media dynamic may have some unfortunate implications. Calls for regulation of this new and versatile technology are on the rise across the globe. Privacyrelated fears are the major motivation. In the US, Rep. Bobby Rush’s privacy protection bill, the so-called ‘Best Practices Act,’ targeted ‘precise geolocation information’ as sensitive data subject to greater protection. Meanwhile, both the Federal Trade Commission and the Department of Commerce have cited location- based data as a privacy concern. The FTC’s report, “Protecting Consumer Privacy in an Era of Rapid Change,” states that precise geolocation info is sensitive and should be subject to greater protection.
Street View Flap in Europe
These concerns are not just an American phenomenon. Last year, one of the biggest stories in geolocation was the backlash against Google Street View across Europe.
The service provides detailed street-level images. Europeans became even more concerned after Google admitted that its data collection vehicles had collected personal information over unsecured Wi-Fi networks. Google said that was inadvertent, but in the wake of the incident the company was hit by a number of lawsuits and government investigations.
Germany introduced privacy protections that included preventing the introduction of Street View in that country until November 2010. About 250,000 Germans took advantage of those regulations and requested that images of their homes be blurred on Street View. In South Korea, meanwhile, revelations about Street View’s accidental collection of personal data prompted authorities to raid a Google office and accuse the company of breaking the law.
Today, GPS location-aware smart phones and other devices collect enormous amounts of data about where people go and what they do. This information can be aggregated with other information to determine ‘who they are’ with precision and accuracy.
Clearly, geolocation is becoming an increasingly important component of our daily lives, and as the technology evolves, geolocation companies will face a raft of new regulations. The industry needs to move quickly to educate lawmakers and executive agencies about geolocation’s complexity, its enormous potential and its many variations.
While lawmakers tend to favour language that applies broadly to many categories of regulated entities, there are as many different types of location data as there are ways to collect and use that data. This means that a detailed, fully informed discussion about geolocation is essential if the sector is to avoid suffering the ill effects of ‘the law of unintended consequences’. Regulators will need to understand the various ways that location data can be collected and used before they can really address the questions that will arise. Should someone’s location on a public street be protected in the same way as medical records or bank account information? How will the answers to such questions affect the growth and development of this industry?
Industry involvement in resolving these issues is critical. Overly broad legislation could stymie the many governmental and societal locationbased applications currently being developed. These applications could prove invaluable for crisis and emergency response, public transportation, economic development and land management besides helping to develop Intelligent Transportation Systems.
Impact on Business
In anticipation of new regulations, companies should take steps to protect themselves from liability and defend their interests. They should begin to identify and protect geolocation data they collect or use if it could be associated with an individual. They will need to know what spatial data assets they have throughout the organisation and how that information is aggregated and used. This will give them the ability to understand how they will be impacted by proposed regulations and, should it prove necessary, how to provide proper disclosures.
Increasingly, company databases connect customers, employees and vendors to specific locations, even at particular times. Such data could become subject to regulation if laws are not carefully drafted. Indeed, drafting laws and regulations governing geolocation will be a major challenge. Even the basic definition of what is meant by ‘precise geolocation information’ – a term that seems to have slipped fairly easily into the parlance of lawmakers and US government agencies – is far from clear.
Govt and Geolocation
Private citizens and lawmakers alike are concerned about the possibility of location data being extracted from smart phones without the user’s knowledge or permission. Another controversy is over law enforcement use of GPS or other tracking devices to monitor someone’s movements without a warrant. Courts have issued conflicting decisions about whether there is legal authority for this and clarity would be welcomed by the geolocation industry.
Another important issue is whether police need to obtain a warrant before they can access peoples’ cell phone records to obtain historical location information (i.e. where they have been).
Congress is now looking at updating relevant portions of the Electronic Communications Protection Act, an effort supported by a broad coalition of technology companies and think tanks.
In December of 2010, meanwhile, private citizens filed two lawsuits against Apple and some application developers for collecting personal information, including location, associated with iPods and iPads, without their owners’ consent. This unresolved issue is likely to become more pressing in 2011 and may extend to Android phones.
Governments world-wide are facing similar uncertainties. In January, law and policy issues were a major part of the discussions at the Geospatial World Forum in Hyderabad, India. This international conference brings together a variety of stakeholders and end-users in this industry. The goal is to find ways to facilitate the collection, sharing and use of spatial data for commercial and public purposes, while also addressing the emerging legal and policy issues.
Among those who will be impacted are national mapping agencies, which deal with infrastructure development and national security among other issues and which stand to benefit greatly from new sensors and technologies that make it easier to collect, map and share data.
Many of these agencies are concerned about such issues as intellectual property, national security, liability and privacy. Similarly, the law with respect to weather and other types of data (spatial or otherwise) is confusing and contradictory, making it difficult for an attorney to identify the risks.
For corporations that do business overseas, the lines that are eventually drawn by governments will be important. They will, for example, determine the extent to which geolocation companies can participate in public-private projects involving location- based data.
Notions of Privacy
The privacy issue is challenging in part because the notion of privacy itself is rooted in culture and varies dramatically from one nation to the next. The novelty of the technology compounds the complexity. People want to protect privacy, but with regard to location they are not sure what ‘privacy’ is. Europeans are nervous about Google Street View, while Americans are more troubled by the idea of ‘Big Brother’ – the government – tracking them.
As national governments develop policies that are appropriate for their own legal systems and cultural mores, multinational corporations need to develop business models that mesh with those policies. Failure to do so will make it difficult or impossible to grow a business in these countries, while at the same time it will expose the company to unacceptable levels of risk.
The geolocation sector must also address intellectual property rights and various kinds of potential liability. An accident implicating a navigation device is an obvious example of a scenario that could raise a liability issue. Last year, there were several high-profile cases where directions from satellite navigation devices were alleged to have caused accidents, including at least one reported fatality. Also, a lawsuit was filed against Google claiming an injury related to use of Google Maps.
It’s not surprising that plaintiff lawyers are discussing the risks associated with using this technology and corporate clients should develop risk-reduction strategies. But in this realm too, there are many uncertainties. What level of data quality is required for a particular application? Under what circumstances should companies be liable if their locationbased products are found to contribute to an accident? Case law will clarify some of these questions, but it will take time.
Among the intellectual property issues raised by location data is the breadth of copyright. Does a copyright apply to a particular dataset and what constitutes a derivative product?
We are in the midst of an exciting era for the geospatial industry. New applications and business models are emerging every day. But as the industry matures and achieves greater success, companies that use location- based data can expect greater scrutiny from legislators and regulators. At this point, it’s important that all segments of the industry prepare for potential outcomes, while at the same time they stay engaged in what is happening and make their voice heard.
EDITOR’S NOTE: This article originally appeared in the April/May 2011 issue of Executive Counsel magazine and is reprinted with their permission.
