Subject: [NEXTEL-1] Saving Private Location

From: [email-masked]
Date: Sat, 18 Oct 2003 14:11:09 -0400

Saving Private Location

October 1, 2003
By: Dee Ann Divis
GPS World

As location technologies become increasingly integrated into equipment such as
cell phones, an ever-growing contingent of people you don’t know can find out
where you are.
Sometimes it is critical to be findable. If cell phone emergency location
capability, called E911, had been in place in New York last January 24, four teens
calling for help from a sinking dinghy off City Island might have been saved. And
applications such as GPS-based locator services with operators to help you when
you are lost can be extremely helpful.  Convenience is also a popular component:
for example, cell phone concierge services can not only give you directions to the
theater, but order your tickets for you as you drive.

The market for mobile location services shows signs of potentially huge growth —
so big that some see it as the savior of struggling wireless telecommunications
companies. Some telecom companies already use GPS as a foundation technology, and
the possibility for expanded use of GPS-based support services, equipment, and
chipsets is quite significant.

But what MIT’s Technology Review refers to as “whereware” — the hardware and
software that make locating a person possible — worries many people. The same E911
capability that may save your life will also make it possible to track your
whereabouts, locating you in real time when you make a call and creating a record
of your movements that can be used for reasons that have nothing to do with
safety.
And it’s not just your cell phone that could keep an eye on you. In the process of
investigation, law enforcement is using other types of seemingly harmless devices
such as subway fare cards to determine who went where and when. The Patriot Act
gives law enforcement much greater latitude to obtain business records that could
easily include location information from myriad sources such as electronic highway
toll cards or GPS-based units installed in vehicles to monitor shipping or support
telematics or intelligent transportation systems.

Unfortunately legal protections are once again lagging behind the technology and
offer only limited shields for ensuring the privacy of location data. Existing
safeguards apply to wireless communications only, and wireless companies are
already seeking an easy and potentially sneaky way around the limits that could
involve burying permission to use place information in the fine print. If
anything, with the exception of one recent court decision, the current legal
climate appears not to champion location privacy. Traditionally, the courts had
deemed location data to be public information.

But a backlash is building, the sort that could hurt the GPS industry. The public
is growing wary of privacy breaches, experts told GPS World, and is beginning to
reject location-based services. If the provision of location-based services is
undermined, then the GPS industry, the mapping industry, and a host of data
providers will be hurt as well.

On the Trail

It is important to note that GPS by itself is not a tracking system. GPS receivers
use the passive, one-way transmissions of signals from the orbiting satellites to
determine a position fix. Nothing in the GPS system infrastructure enables system
operators to know who is using the signals or where they are. Conversely, a GPS
unit cannot use the system to transmit its own location.
For GPS to become part of a tracking system, it must be coupled with a
communications device. Indeed, when compared with the so-called “network-based”
positioning systems that use the telecommunications infrastructure to determine a
user’s location (and enable network operators to know that location), a
GPS-equipped unit may provide users with greater control over their privacy.
That’s because such units typically allow users to block the transmission of the
phone’s location.
Application Categories. Tracking technologies and applications comprise several
categories. First are those based on wireless devices with a communications
component such as cell phones, personal data assistants, mobile computers such as
laptops, and the services that help lost drivers. Second are devices that directly
track the location of objects such as cars, buses, and delivery vehicles or
monitor the location of pets and people — for example, to help find wandering
canines and lost Alzheimer’s patients. Somewhere in the middle are hybrid
applications that tell you where your friends are at any moment and projects such
as the Defense Advanced Research Agency’s LifeLog that would use a host of
recording devices to create a comprehensive record of literally everything a
person does, feels, and experiences, including where they go.

All these applications can, and often do, use GPS for positioning. Some, such as
the proposal in Oregon to use GPS devices on cars to monitor and tax car owners on
the basis of in-state mileage driven, require mapping support to work. Means other
than GPS-enabled devices can provide location information. Cellular triangulation,
Wi-Fi networks, and ultrawideband offer outdoor and indoor location data as well,
sometimes down to the centimeter level. Data from fine-tuned location
capabilities, used for example to guide (and monitor) the movement of people
through a trade show, can easily be used for other purposes.

The spectrum of location applications also encompasses indirect transactional
tracking that draws on data from fare cards, frequent buyer cards, credit cards,
ID cards and potentially drivers’ licenses, and electronic toll cards that create
a record each time you buy something or pass through a specific location. This
category also includes radio frequency identification (RFID) tags that, for
inventory purposes, broadcast the location and unique code of items in a store.
They are expected to eventually replace bar codes and will show where and probably
when something in your possession was purchased. These indirect ways of finding
out where you have been do not use GPS but do raise the level of privacy anxiety.

Patriot Act. The public has good reason to be anxious. Law enforcement has used
information from devices in all of these categories, and marketers may be using it
too. The Patriot Act, ostensibly aimed only at terrorists, grants much greater
access to information. This law is now being stretched to cover nonterror crimes
such as drug trafficking.

As stories surface about abuse of tracking technology, the already intense concern
people have about being monitored will escalate, and services that could have been
helpful may founder. The truly beneficial uses of location technologies such as
safety and search and rescue could develop into strong markets for the GPS
community only if the Big Brother issues can be addressed.

What’s at Stake

The potential market for location services is huge. In Japan tens of millions of
people already use these services regularly, according to an article in MIT’s
September 2003 issue of Technology Review. Japan’s KDDI, a telecom company that
offers more than 100 location services itself, began offering GPS-equipped phones
last year and sold roughly five million of them in about 12 months.
In the United States, E911 leads the way for communication-linked location
services. Cell phone providers are currently phasing in the capability per the
Federal Communications Commission (FCC) directive that 95 percent of the handsets
in service be able to provide location to within 50 to 100 meters by December 31,
2005. This means that many handsets must be replaced, particularly those without
GPS functionality.

Once the capability is in place the U.S. market for services is expected to
blossom. The Review cites Gartner market research figures that project user
numbers to expand from a few hundred thousand today to 42 million by 2005. In the
same time period revenue from services in the United States is anticipated to jump
from $6 million to roughly $828 million, with worldwide service revenue expected
to top $26 billion by 2007.

Obstacles To LBS. In a research summary provided to GPS World, Gartner also
cautions that privacy concerns are the biggest obstacle to the development of
commercial location services: “The complete deployment of location technologies
and services, and the development of a mass market for mobile location services,
will take a long time because of the obstacles in its path. These include
technology, market, and above all, privacy issues.” (“Advantages and Disadvantages
in a Location-Aware Society,” Gartner, 25 July 2002).

“[Privacy has] been a major issue in terms of location-based services,” agreed
Todd Bacastow, a professor at Penn State in State College, Pennsylvania, and
president of the Geodata Alliance. The Alliance has been working for roughly four
years to further data sharing. “The major inhibiting factor has been the
unwillingness of someone to give away their location in order to receive the
service,” according to Bacastow, who added that the Patriot Act had sharpened
fears. “I think that most people don’t really want anybody to know where they are
unless they need an emergency service like dispatch E911 for an accident. If there
is some way people think I could get their location, either by the [network] cell
they are in or by imbedded GPS in a cell phone, people would be less likely to use
the service or want the service or even want the capability.”

Charles Golvin, a senior analyst at Forrester Research in Cambridge,
Massachusetts, suggested that people will be willing to trade location information
for services if companies make it worth their while and explain what they plan to
do with any data. But he admitted that the use of location data is an especially
touchy issue.

“The level of concern and suspicion associated with physical location information
raises the stakes,” Golvin told GPS World. “There is a certain limit to what can
be done to you from a virtual perspective. That is pushed very far over a line
that people are uncomfortable with when you add physical information. That is a
much greater cause for concern among most people.”

Privacy Incursions

If you have any doubt that police will try to use location data in ways that
challenge Americans’ expectation to be free of inappropriate surveillance, recent
cases in New York City, Washington state, and Florida may change your mind.

In New York the MetroCard, which totally replaced subway tokens this year, has a
magnetic strip that stores a serial number and other information that is relayed
to New York’s Metropolitan Transportation Authority (MTA) each time the card is
used. Police have been querying a database of the information from these cards,
first introduced in 1994, as often as one thousand times a year to break or verify
alibis, according to an article in the July/August 2003 issue of Legal Affairs.
Crediting a 2000 article in New York’s Daily News for the data, the article said
no subpoena were being required to retrieve the data. Police need only ask MTA for
the information; a 1997 state Supreme Court ruling that the general public has no
expectation of privacy in terms of such information.

The ruling rests on the idea that what you do in public, including where you are
as you travel, is easily observed by anyone and is therefore public information.
Police agencies have put forth this argument at all levels. It is similar to the
logic that enables the relative ease of access police have to records of who
phoned whom.

Warrant Requirement. But the no-warrant-needed argument was dealt a blow this
September when the Supreme Court of the State of Washington ruled it was necessary
for police to obtain a search warrant to use a GPS tracking device to facilitate
an investigation. The case involved the murder of a child in Spokane. Police
attached a GPS device to her father’s car to log data that, once the unit was
recovered, allowed them to track his movements and discover her body. In that case
the police had, in fact, obtained a warrant permitting the surveillance on the
established legal principal of probable cause. The grounds for the warrant were
challenged by defense attorneys, but the court upheld the warrant and the man’s
conviction. In the process, however, the court specifically ruled that it was
indeed necessary to obtain a warrant to use a tracking device using GPS.

The wording of the ruling is broad and may well be applicable to other forms of
location data. In State of Washington v. William Bradley Jackson (Docket Number
72799-6), the court ruled that a GPS tracker is not like a flashlight or
binoculars that merely make clearer what is already public but goes much further
to invade the privacy of people’s habits, family life, and beliefs:

… the intrusion into private affairs made possible with a GPS device is quite
extensive as the information obtained can disclose a great deal about an
individual’s life. ... In this age, vehicles are used to take people to a vast
number of places that can reveal preferences, alignments, associations, personal
ails and foibles. The GPS tracking devices record all of these travels and thus
can provide a detailed picture of one’s life.

It is unlikely that the sheriff's department could have successfully maintained
uninterrupted 24-hour surveillance throughout this time by following Jackson. ...
We perceive a difference between the kind of uninterrupted, 24-hour-a-day
surveillance possible through use of a GPS device ... and an officer’s use of
binoculars or a flashlight to augment ...  senses.

The ruling may interest the lawyers of a Jacksonville, Florida, man charged with
the murder of his wife after a GPS-enabled tracking device attached to his car
helped police locate her body. Though a warrant was used for the device, the
defense attorney said he plans to challenge its use.

Fragile Protections

What is being done to address fears about the loss of privacy?
The Wireless Communications and Public Safety Act of 1999 offers some protection,
stating the consumer must authorize the use or disclosure of wireless location
information in advance except in emergency situations.  The law was aimed at cell
phone users, however, and though its language could potentially be extended to
other wireless devices, it does not appear to cover any other kind of location
information.

The Cellular Telecommunications Industry Association (CTIA) sought in November
2000 to have the FCC regulate the use of location data. CTIA was trying to clarify
what the industry had to do to comply with the 1999 Act. It asserted, for example,
that notice in a service or “clickwrap” agreement — endless scrolls of tiny print
no one reads — would constitute consumer permission. The Wireless Consumers
Alliance, in its comments to the FCC, scoffed at the idea.

The CTIA petition also sought to make privacy guards technology-neutral – that is,
the rules would apply to the data no matter what device was used to gather it. It
is hard to say if that action would have shielded consumers from abuses of fare
card data or not — but it was an interesting idea.
No Further Rules. At any rate, we won’t know anytime soon what such a ruling might
have done. Though the point may still be decided some day, the FCC declined last
July to issue any regulations. It said that Congress’s language was clear in the
1999 act and no further rules were necessary. It also said it “did not wish to
artificially constrain the still-developing market for location-based services.”
As it happens, this was also the position of the Direct Marketing Association, the
trade group of companies that helps put junk mail in your mailbox and on your
computer.

Congress is considering at least one bill that would protect the public from “sell
phone” data snoops interested in finding individuals and offering them ads and
services. Unfortunately, the Wireless Privacy Protection Act of 2003, now under
consideration by Congress, applies only to wireless data and, even then, only
requires notice and agreement — the same language sought two years ago by CTIA.

One can’t help but wonder if the cell phone industry is trying again to get a
clickwrap safe-harbor provision that would shield them.

For better or worse, there are few safeguards on your whereabouts.  Without
protections the market for location data, especially in an era when the government
is scaring the cell phones out of people’s pockets, will be constrained. That is a
shame for a lot of reasons, but it is particularly an issue for the GPS community.

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