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RE / Hearing on the Location Privacy Protection Act of 2014
On June 4, 2014 the Senate Judiciary Committee’s Subcommittee on Privacy, Technology and the Law held a hearing to consider the Chairman of the Subcommittee’s, Senator Al Franken (D-MN), proposed legislation, the Location Privacy Protection Act of 2014 (the “Bill”). The hearing was held to consider the use of “stalking apps” to do harm to individuals, especially as that activity relates to instances of domestic violence and abuse. The Subcommitteealso considered the commercial use of location data.
The hearing entailed two panels of witnesses. The first panel consisted of Bea Hanson, Principal Deputy Director, Office on Violence against Women, Department of Justice; Jessica Rich Director, Bureau of Consumer Protection, Federal Trade Commission; and Mark Goldstein, Director, Physical Infrastructure Issues, U.S. Government Accountability Office. The second panel was comprised of Detective Brian Hill, Anoka County Sheriff’s Office, Criminal Investigation Division; Lou Mastria, Executive Director, Digital Advertising Alliance; Sally Greenberg, Executive Director, National Consumers League; Dr. Robert D. Atkinson, President, The Information Technology and Innovation Foundation; and Cindy Southworth, Vice President, Development and Innovation, National Network to End Domestic Violence.
Opening Statements:
Sen. Franken called for a ban on the sale and use of “stalking apps,” which he stated his legislation would do. He noted that these apps are often used by perpetrators of domestic violence and abuse. The senator continued by stating that the commercial collection, sharing, and use of location data by commercial entities was also a concern, as that activity could cause harm to consumers. He stated that the Bill would require consumer consent and notice of the collection and use of location data by commercial entities.
Senator Jeff Flake (R-AZ) offered an opening statement that echoed Sen. Franken’s concerns about stalking and domestic violence. He stated that he supports the sections of the Bill that deal with such apps. Sen. Flake thenvoicedhis concern that the sections of the Bill that seek to regulate commercial collection and use of location data may stifle innovation, and that static regulation of a dynamic area of the economy would be unwise.
Witness Panel One:
Opening Statements: The first panel focused on current government enforcement actions and research into the use of location data. Ms. Hanson began by stating that the Department of Justice (“DOJ”) has used its authority under the Violence Against Women Act, and its various amendments, to prosecute many instances of stalking, including cyberstalking. She stated that these cases increasingly involve the use of location tracking tools and devices.
Ms. Rich discussed the Federal Trade Commission’s (“FTC”) research and actions regarding location data. She stated that the FTC considers location data to be sensitive data, and that consumer consent should be required before collection takes place. Ms. Rich noted several FTC enforcement actions against commercial entities regarding their location data collection practices, as well as several FTC reports and seminars on the subject of location data. She concluded her remarks by stating support for the Bill, but requesting that the FTC be given enforcement authority over the Bill’s civil provisions.
Mr. Goldstein summarized two Government Accountability Office (“GAO”) reports on location data practices. He stated that consumers are not always aware of the collection and use of this data. Mr. Goldstein cited FTC and GAO recommendations regarding location data collection and use by commercial entities, and stated the GAO found that companies do not consistently follow that guidance.
Questions: The question period began with Sen. Franken asking the DOJ and the FTC to take all possible steps to curtail the sale and use of “stalking apps,” a commitment both representatives agreed to undertake. In response to later questions about FTC authority in this area, Ms. Rich stated that the FTC has taken action against companies that make deceptive claims about location data collection. She also emphasized the FTC’s consumer education about location data.
In response to Sen. Franken’s question about GAO’s opinion of industry self-regulation, Mr. Goldsteinstated that based on a 2012 GAO study, implementation of industry best practices are inconsistent. Ms. Rich stated that the FTC believes that opt-in for collection of this data is inconsistently executed.
Sen. Flake asked if the GAO reports had found examples of actual consumer harm stemming from the legitimate commercial collection and use of location data, to which Mr. Goldstein responded in the negative. Ms. Rich and Mr. Goldstein stated that there is potential harm from the collection of this data, but did not cite actual consumer harm.
Witness Panel 2:
Opening Statements: Mr. Hill began the second panel by describing his experience with “stalking apps” as a police officer. He stated that he has seen increasing use of such apps in stalking and domestic violence cases, and that many police departments are incapable of adequately discovering and investigating the use of such apps. He endorsed the notice requiredby the Bill, as well as the criminalization of “stalking apps.”
Mr. Mastria described the Digital Advertising Alliance’s (“DAA”) self-regulatory principles, especially as they apply to the commercial collection and transfer of precise location data. He stated that Principles have brought transparency, control, and accountability to commercial data use on the desktop, and that the program is being applied to mobile. Mr. Mastria cited the enhanced notice and consent requirements for the collection and transfer of precise location data to third parties. He also described DAA’s plan to introduce a mobile app to provide consumer control over the collection and use of mobile data. He concluded by stating “stalking” is a serious issue, but that criminal activity is separate and apart from the legitimate commercial use of data covered by the DAA program.
Ms. Greenberg stated that the “right to privacy” is fundamental, and that her organization is concerned that consumers are anxious that that right is being infringed by the collection of data. She criticized industry programs as not going far enough in giving consumers control over these practices. Ms. Greenberg voiced support for the Bill, including a private right of action.
Mr. Atkinson stated that the commercial use of data and cyberstalking are two unrelated topics. He voiced concern that regulation of commercial use will stifle innovation. He also stated that industry self-regulation is working and that the market is capable of responding to the concerns of the Bill in the commercial space. In discussing stalking and domestic violence, Mr. Atkinson stated that the Bill should specifically define “stalking apps” as those that allow access to location data to individuals, to avoid burdens on legitimate applications.
Ms. Southworth discussed the dangers of phone spyware and its use in domestic violence. She stated that the collection of location data falls outside of the scope of existing laws. She endorsed the opt-in consent requirement of the Bill, the criminalization of “stalking apps,” a private right of action, and called for parallel state laws.
Questions: The question period began with a discussion of “stalking apps” marketing themselves as family or employee tracking apps. Mr. Hill and Ms. Southworth stated that this is common. Ms. Southworth stated that this activity is the reason that all apps should be required to be transparent and provide notice to consumers.
Sen. Flake asked the panel about how consent and notice could be obtained from consumers, especially with regard to devices that do not have a traditional screen. Mr. Mastria stated that self-regulation has been effective in achieving transparency, control, and accountability on the desktop, and that the DAA’s recent move into the mobile space is evidence of self-regulation can successfully and quickly adapt to new business models. Mr. Atkinson echoed this point.
Sen. Franken asked why the DAA mobile principles are not currently enforced against companies. Mr. Mastria responded by stating that the mobile principles were currently in the implantation phase, with the next step being the introduction of a mobile app to offer consumers control of data collection. Mr. Mastria pointed to the enforcement of existing DAAprinciples, and the more than30 enforcement actions that have come from that enforcement as evidence that the mobile principles will be enforced.
In response to a question by Sen. Franken, Ms. Greenberg criticized the DAA principles as not going far enough and stated that while there is no evidence of harm to consumers, the fact that consumers are concerned about data collection isharm on its own. Mr. Mastria responded to this critique by stating that the DAA principles require opt-in consent for collection and transfer of precise location data.
Mr. Franken concluded the hearing by reemphasizing the importance of ending the practice of selling and promoting “stalking apps,” and calling for more funding of law enforcement efforts in the area of cyberstalking and domestic violence.
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