Wednesday, April 10, 2013

Privacy of geolocation: the new European and American law

Readers of this blog will recognize the Spanish attorney Efren Diaz as a frequent guest blogger. Please find below his views on geolocation privacy from a European and US perspective. The post has been translated to English (with a few formatting cleanups) from a blog in Spain on Spatial Data Infrastructures using Google Translate.)

In the last decade the privacy of geolocation has made ​​huge technological and legal interest. 

In January 2009 a report by the Justice Department of the United States on 2006 data confirmed that approximately 26,000 people had been harassed via GPS data,including mobile. In December 2010, a Wall Street Journal investigation revealed that 47 of the 101 best apps for smartphones yielded persons location data to third parties without the consent of the persons concerned. 

In April 2011, users of iPhone and Android smartphones know that their information will automatically send your location to Apple and Google, even while users are not using the applications or, in the case of Apple, when users had no way of preventing gathering information. In November of the same year 2011, consumers also knew that their smart phones with location information sent to companies that did not even know and no option to prevent the sending of geoinformation. 

In 2012 the development of satellites has allowed the collection of information from different parts of the electromagnetic space or through radar or sonar in the water and in the air. And the results have been processed in multiple formats depending on its ultimate use, including layered images added content. The scale of this phenomenon is growing geospatial and the amount of information processed by systems is unimaginable "Big Data". 

These facts have led to wonder if mankind is to remain helpless under these new sensors that can investigate every corner of our Earth. Moreover, in legal practice and technology and considers how these big issues affect the Knowledge Age behavior of individuals and societies.
So many people and organizations have requested that governments adopt safeguards to protect the location of people. In particular, it argues that the legislation prevents companies information on the location of the smartphones of customers each day and transfer it to almost any person or company without the express consent of the client or interested. 

These issues affect the backbone of spatial data infrastructures and how we work with mapping and geospatial services. Thus, in the United States, the Cable Act (47 USC § 551) and the Electronic Communications Privacy Act (18 USC § 2702) prohibits operators and telephone companies offer telephony services without the consent of clients and also prevent disclosure unauthorized third of customer data, including location. 

In Europe we are waiting for the approval of the draft General Regulation Data Protection , which addresses geolocation data in new and from the definition of "interested" (art. 4.1): "Any person has the right not to be As the subject of a legal effects concerning him or significantly affects him and which is based solely on automated processing intended to evaluate certain personal aspects specific to such individual or to analyze or predict job performance in particular, their economic , their location, their health, their personal preferences, reliability or behavior "(art. 20.1, in relation to art. 33). 

And in the United States and has been presented in this March 2013 draft of the"Law of protection of communications and geolocation online" (" Online Communications and Geolocation Protection Act "), one of the highest impact to today, and is expected to have a special influence on legislation in numerous states geoinformation North America and its environment. The main reasons are its good definition of measures and safeguards rightly referred to the protection of all kinds of information, especially the location. Do not think only in "GPS data", but in the log data, tracking of people and goods and geolocation technology. 

The rule behind this new legislation is that location data may only be disclosed to legal requirement or court "if there is probable cause to believe that records location information will provide evidence in legal or criminal investigation." 

Among the new measures proposed, highlights the "annual transparency" of the operators on the frequency of reporting requirements that are location and what kind of information reveal. Will be required to wireless companies for both the general public and to the national or regional government. 

This measure is part of, among others, in the judgment of January 2012 and the judgment of the Supreme Court of the United States of 23 January 2012 laying unconstitutional and contrary to the Fourth Amendment (on "Privacy" ) of the American Constitution which police conduct an illegal search and track criminal unreasonable when they installed a GPS device on the suspect's car for 28 days without legal safeguards or judicial. Even four of the judges noted that the measure violated the "reasonable expectation of privacy" of the suspect. 

Therefore, the new privacy legislation of geolocation in Europe and the United States should be expanded from the protection of individuals in relation to monitoring and tracking the location of people in real time, based on their mobile geodata . Also urges prevent unauthorized access to the records of the operators about where and when users make calls or send and receive text messages. 

In our [Mr. Diaz'] opinion, the location information can make extensive disclosures about the personal and professional lives of smartphone users, about his private life, his friends and business partners on their participation in political activities or their healthcare. 

Therefore, we consider it vital to adopt by Legislator adequate and effective guarantees in legal research, if approved by the court, before requesting and disclosing this kind of information by providers and Internet phone services. 

This kind of transparency is essential for proper dialogue between the power of law enforcement, including the INSPIRE Directive or LISIGE in Spain, and in the modern world  geospatial technology. 

For more infromation on Mr. Diaz and his law firm, please click here

No comments: