Below is the text of the letter that the Centre for Spatial Law and Policy sent to the Federal Trade Commission regarding its report, "Protecting Consumer Privacy In An Era of Rapid Change".
February 8, 2011
The Honorable Jonathan D. “Jon” Leibowitz, Chairman
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, D.C. 20580
RE: Public Comments on December 1, 2010 Preliminary FTC Staff Privacy Report
Dear Chairman. Leibowitz:
The mission of the Centre for Spatial Law and Policy (http://www.spatiallaw.com/) is to improve the understanding of the unique legal and policy issues associated with the collection, use and distribution of location and other types of spatial data. Such an understanding is a necessary component in the development of a consistent and transparent legal and policy framework that will allow for the successful growth of the emerging U.S. spatial technology industry while still protecting important and legitimate privacy and societal interests.
Our comments below are therefore focused exclusively on this aspect of the recent Federal Trade Commission (FTC) report, Protecting Consumer Privacy in an Era of Rapid Change (the “Report”). The Report provides on page 61 that:
“[t]he Commission staff has supported affirmative express consent where companies collect sensitive information for online behavioral advertising and continues to believe that certain types of sensitive information warrant special protection, such as information about children, financial and medical information, and precise geolocation data [emphasis added].. Thus, before any of this data is collected, used, or shared, staff believes that companies should seek affirmative express consent. Staff requests input on the scope of sensitive information and users and the most effective means of achieving affirmative consent in these contexts”.
We appreciate this opportunity to comment on the Report. Clearly, location information is becoming an increasingly important component of our daily lives, as location-aware smart phones and other devices are collecting enormous amounts of data. The level of available detail--and potential privacy risks--will only increase with time, compounding existing concerns about privacy.
However, it is important to recognize the growth and increased importance of the geospatial industry in the U.S. In fact, the Department of Labor identified geospatial technology as one of the top three growth industries in the 21st century. In addition, there are as many different types of geolocation data as there are ways to collect and use the data. The Department of Interior, when announcing the formation of the National Geospatial Advisory Committee, a Federal Advisory Committee formed in 2007 to advise the Secretary of Commerce on geospatial matters, refers to geospatial information as “information integrated from multiple forms of data about precise locations on the Earth’s surface.” [emphasis added.] Similarly, a recent Congressional Research Service report, entitled “Geospatial Information and Geographic Information Systems”, describes the many different types of geospatial information and the ways the information can be acquired and utilized.
As a result, the Centre and its members do not agree with a general assertion that location information should be treated the same as medical records or financial records.
We acknowledge that the FTC conducted a series of meetings on internet privacy prior to the report. However, we do not believe that enough attention was paid to location, particularly the issues described below. This is due in part to the rapid changes in the adoption of geospatial technology over the past eighteen month. It also because the language currently being proposed with regards to location could impact businesses that would not have considered themselves stakeholders at the time of the meetings. As a result, we request that the FTC conduct further discussions with the geospatial industry – broadly defined - before any government mandates are imposed regarding location data. Without such a discussion, overly broad or poorly defined legislation and/or regulation could stymie the numerous important governmental, economic and societal applications currently being developed based upon location.
1. Location information is often public. Unlike the other types of sensitive information described in the report, a person discloses his or her location to strangers every time he or she goes out into the public. Therefore it is unreasonable to expect that with regards to collection, this information should receive, as some have proposed, greater protection than an individual’s credit card number or driver’s license number and the same protection as medical history or sexual orientation. The Supreme Court in a number of cases related to Fourth Amendment privacy issues has found that citizens do not have a reasonable expectation of privacy while in public places. Any proposal to regulate location information must be mindful of the potential impact such regulations might have on other such important policy considerations.
2. Location information is vital. Unlike the other types of “sensitive information”, location data is being used to provide a number of critical governmental, societal and business services that are empowering citizens in ways that were unimaginable just a decade ago. The number and value of these services are increasing on an almost daily basis. We believe that attempting to regulate the collection of location data could have a number of unintended consequences, including limiting the number of such services, both now and in the future. We recommend that such opportunity costs be fully explored and understood before regulations are imposed.
3. Consistency is critical. As the Commission knows, a number of privacy-related initiatives are currently underway in Washington that attempt to address potential privacy issues associated with geolocation data. These include the Commission’s Report, the Department of Commerce’s Green Paper, and various Congressional legislative efforts. Each cites “precise geolocation information” as sensitive data warranting greater protection.
4. Some concerns should be addressed elsewhere. Certain concerns about protecting consumer’s location privacy, such as those associated with the use of location technology for so-called “cyberstalking”, can and should be better addressed in other ways, for example, through criminal penalties. As recent court decisions involving the Electronic Communications Privacy Act (ECPA) have shown, trying to fit location information into the same privacy construct as other types of information is extremely complicated, and still might not achieve the desired results.
We believe that before any regulations are proposed, the term “precise geolocation information” must not only be generally understood, but also carefully and consistently defined. Otherwise there is a great of risk of confusion and uncertainty, which would not benefit any stakeholder
We look forward to working with you as these discussions move forward. To that end, we would like to request a meeting with your professional staff who handles this issue. I may be reached at 804.928.5870 or Kevin@spatiallaw.com. I look forward to continuing our discussion and thank you for your time and attention.
/s/ Kevin D. Pomfret
Kevin D. Pomfret