Private eyes are watching you: with the implementation of the E-911 mandate, who will watch every move you make?

• Author: Smith, Geoffrey D.
• Position: Telecommunications Act of 1996: Ten Years Later Symposium

The FCC's E-911 mandate, which will ensure that emergency operators automatically receive a caller's location information, should help save lives. However, privacy advocates have expressed concern over the potential for wireless carriers, the government, and third parties to collect and store personal information. Congress has addressed these concerns with legislation, but privacy advocates still worry that consumers are not adequately protected. This Note addresses this concern and argues that in order to ensure consumer protection, additions are needed to section 222 of the Telecommunications Act of 1996. The Note discusses the importance of individual privacy and balances it against the benefits of location technology. The Note then suggests regulatory changes that should both protect consumers and allow this technology to continue to develop.

1. INTRODUCTION II. PRIVACY LAW ORIGINS AND THE POTENTIAL FOR HARM IN THE COLLECTION OF PERSONAL LOCATION INFORMATION III. LEGAL HISTORY OF FEDERAL REGULATION FOR CELL PHONE LOCATION INFORMATION A. Telecommunications Act of 1996 and U.S. West v. FCC B. Wireless Communication and Public Safety Act of 1999 C. Federal Trade Commission's Unfair and Deceptive Act IV. PROBLEMS WITH CURRENT REGULATION MECHANISMS V. NEW AMENDMENTS TO SECTION 222 OF THE 1996 ACT ARE NEEDED VI. CONCLUSION I. INTRODUCTION

   After a snowmobile accident broke his neck, back, ribs, and bruised his lung, Brent Alvut managed to dial 911 from his cellular phone. (1) The global positioning system ("GPS") technology integrated within his cellular phone allowed the 911 operator to immediately pinpoint Alvut's location and save his life. (2)

   Many were not as fortunate as Brent. In 1993, eighteen year old Jennifer Koon called 911 from her cell phone, however, she was unable to tell the dispatcher her location. (3) The dispatcher "listened helplessly ... as Koon was raped and killed." (4) In 2001, a thirty-two year-old woman drove off of the Florida Turnpike, into a canal. (5) As her car was sinking, she dialed 911. (6) She talked to the dispatcher for over three minutes but did not know her exact location. (7) Rescuers were unable to find her before she died. (8)

   Stories abound of men, women, and children who were stranded in places unknown; who were trapped under the September 11th rubble; who were abducted; who were lost in the snow; and others who were carried away by the tsunami in Southeast Asia. All found themselves in a place they could not describe, and many could have been saved had their location been immediately known.

   In the United States, there are nearly 200,000 911 calls made by cell phones every day. (9) In response, the Federal Communications Commission ("FCC") has developed a set of regulations called Enhanced 911 ("E-911") that require wireless carriers to identify the location of the caller's cellular phone for the delivery of emergency services. (10) Once E-911 is fully implemented, emergency operators will automatically receive the callers' location without wasting valuable time seeking information from a caller who may not be able to sufficiently describe their location. (11) By December 31, 2005, wireless carriers must ensure that 95% of their subscribers have cellular phones with location-tracking technology. (12) This will complete the four-year rollout of the FCC's wireless E-911 program.

   The E-911 program will undoubtedly save lives, and wireless carriers are using cell phone location information for alternative services. (13) Location Based Services ("LBS") have already and will continue to add many benefits to our lives. Some employers already use the technology to keep track of their employees, and some parents use it to keep an eye on their children. (14)

   Despite the many benefits, privacy advocates have expressed concern over the potential to collect, store, and analyze every place individuals go with their cell phone. (15) Are wireless carriers permitted to track, record, and store every location your cell phone travels? Can third-party service providers record, store, and sell your location information? Has the government effectively gained access to most individuals' daily routines, the places they visit and even whom they visit? (16) In an attempt to address privacy concerns with E-911, Congress requires that wireless carriers obtain "express prior authorization" before releasing location information to third parties. (17) Industry advocates requested the creation of regulations to clarify the meaning of "express authorization" and "location information"; however, the FCC declined the request, stating that the statutory language was clear. (18)

   Are additional limitations on the collection, storage, and use of personal location information needed? To address this question, this Note will consider the history of the Wireless Communication and Public Safety Act of 1999 and the potential problems with the current statutory protection. This Note will argue that the current statutory provisions along with the Federal Trade Commission's ("FFC") unfair and deceptive act are inadequate to protect against the potential for abuse of personal location information. Self-regulation has failed with the Internet and is unlikely to succeed in the wireless environment. (19) Therefore, additions to Section 222 of the Telecommunications Act of 1996 ("1996 Act") are needed to ensure protection of individual location information. By making limited additions, individuals can enjoy both the benefits of increased privacy protection without hindering the industry's development of LBS.

2. PRIVACY LAW ORIGINS AND THE POTENTIAL FOR HARM IN THE COLLECTION OF PERSONAL LOCATION INFORMATION

   Privacy law in the United States began with the publication of The Right to Privacy in the Harvard Law Review. (20) Lores Brandeis and Samuel Warren expressed concern that the instant photograph would allow the press to overstep "in every direction the obvious bounds of propriety and of decency." (21) Brandeis and Warren defined privacy as "the right to be let alone" and established the "foundation for the two dominant strands of U.S. privacy law: protection against government invasions of citizen privacy, and protection against harmful uses of personal information." (22)

   The protection against harmful uses of personal information is found in the development of three common law torts: (1) the tort of unreasonable intrusion into the seclusion of another, (2) the tort of unreasonable publicity given to the other's private life, and (3) the tort of publicity that unreasonably places the other in a false light before the public. (23) These torts were designed to apply only to "a narrow category of harmful uses of information." (24) The torts must also withstand First Amendment review. Since the courts have long held that there is no expectation of privacy in a public place, it is unlikely that any of these torts would be applicable to personal location information collected in the public. (25)

   The other strand of U.S. privacy law, protection against government invasion of citizen privacy, has developed through the Supreme Court's interpretation of the Constitution. (26) Although the Constitution provides no explicit right to privacy, the Supreme Court has found a right to privacy in the "shadows" of the Bill of Rights. (27) This right protects individuals from the government's invasion of privacy, but does not provide protection between individuals and businesses. (28)

   This focus on government intrusion reflects the reality that only the government exercises the power to compel disclosure of information and to impose civil and criminal penalties for noncompliance. Only the government collects and uses information free from market competition and consumer preferences. "It is therefore not surprising that the Supreme Court has interpreted the Bill of Rights to restrict the government's collection and use of personal information." (29)

   Today, this brightline distinction between the government and the private sector may not be warranted. (30) New technologies allow the private sector to collect and store tremendous amounts of personal information. (31) Once the information is collected in the private sector, the government is not prohibited from accessing the information. (32)

   These technological developments show good cause for consumer concern. The government has issued the E-911 mandate requiring wireless carriers to implement technology with the capability of collecting and storing personal location information. (33) The government has not put restrictions on the collection and storage of the personal location information that may be collected by the wireless carriers. Furthermore, once the wireless carriers and third-party service providers collect the information, the government is then able to access the stored information. (34) Therefore, the government has enabled itself to collect personal location information indirectly, which it most likely would have been prevented from doing under the Constitution. Since most Americans either carry, or will eventually carry, a cell phone with them everywhere they go, the government is effectively able to track all of the movements of an individual's cell phone, gaining access to the places and people the individual visits.

   In addition to concern over governmental access to such personalized information, other harms or concerns have been raised. Some consider it a harm that every place to which an individual travels may be recorded, analyzed, and stored indefinitely. Furthermore, this may influence the individuals' freedom of action and may even impede political dissent. If the individuals are not aware that the data is being collected, they may be harmed if the data contains errors or is misattributed to them. To some, the collection of personal location information may be embarrassing or may be seen as a violation of each individual's autonomy.

   Often the...