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Taken to some of its most extreme manifestations, geolocation tracking has enabled jealous and hateful spouses to track and stalk their partners, often resulting in domestic violence. This abuse, particularly of women, through such “stalking apps” was the focus Wednesday during a Senate Judiciary Subcommittee hearing on a location privacy bill introduced by Sen. Al Franken (D-MN).

More broadly, however, the Location Privacy Protection Act of 2014 proposes not only to “shut down these (stalking) apps once and for all,” it would also require companies that collect and use geolocation data to receive user permission first. Franken’s bill—co-sponsored by Sens. Chris Coons (D-DE) and Elizabeth Warren (D-MA)— would also require companies that collect the location of more than 1,000 devices to post online what is collected, shared and used; ban stalking apps altogether, and mandate that government gather more information about GPS stalking.

The ad industry, however, says such mandates would harm small businesses and the advertising ecosystem in general. Location-based ads, for example, allow small businesses to more accurately target their audience without having to employ large marketing campaigns.

Digital Advertising Alliance (DAA) Executive Director Lou Mastria, CIPP/US, testified, “The DAA is concerned that laws and regulations are inflexible and can quickly become outdated in the face of extraordinarily rapidly-evolving technologies. When this occurs, legislation thwarts innovation and hinders economic growth.”

An open marketplace where industry is allowed to self-regulate, Mastria argued, allows companies to innovate in the area of privacy. “Companies are increasingly offering consumers new privacy features and tools such as sophisticated preference managers, persistent opt outs, universal choice mechanisms and shortened data retention policies.”

Mastria also said the DAA has a track record of accountability through its Self-Regulatory Principles and is backed by the enforcement of the Council of Better Business Bureau.

However, Franken, among others, openly questioned whether industry self-regulation was doing enough to protect users’ sensitive geolocation data. National Consumer League Executive Director Sally Greenberg specifically challenged Mastria on the DAA self-regulatory code, however. “With all due respect to Lou Mastria,” she said, “we’ve looked at the code and it’s filled with holes.” She said self-regulation is not working and that it’s not protecting consumers. She noted the Federal Trade Commission and the Government Accountability Office “say as much.” For example, a GAO study of in-car location-based services “found that despite recommended practices, location data disclosures were often broadly worded and inconsistently described the purposes for sharing de-identified location data.”

She added that “the voluntary nature of multi-stakeholder agreements and industry best practices limits their value in protecting consumers in the rapidly growing mobile data ecosystem.”

Mastria countered that the DAA has brought more than 30 cases against companies for not complying with their self-regulatory principles, and just recently referred one company to the Consumer Financial Protection Bureau for failing to disclose to consumers how its website collects and shares consumer data.

Franken’s bill, which would give “the Department of Justice rulemaking authority, in consultation with the FTC, as well as sole enforcement authority,” has also received support from the FTC. The agency’s Bureau of Consumer Protection Director Jessica Rich said the bill is consistent with its views on the sensitivity of geolocation information and the need for businesses to acquire consent before collection. She asked that the FTC be granted rulemaking and enforcement authority for civil provisions, while granting the DoJ enforcement authority for criminal provisions.

Whether Franken’s bill ultimately has traction to move forward, remains to be seen, but according to AdAge, “because the bill aims to stop technologies that have assisted violent criminals, this particular legislation could have a better chance of passing than some of the more sprawling privacy bills” that have been introduced in recent years.

And Franken emphasized that his concern really is with the bad actors: “I want to make one thing clear,” he said, “Location-based services are terrific. I use them all the time … They save time and money, and they save lives. Ninety-nine percent of companies that get your location information are good, legitimate companies.”

Written By

Jedidiah Bracy, CIPP/E, CIPP/US

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