Evan Schuman's StorefrontBacktalk

Two U.S. Senators have introduced a pair of competing bills intended to make it more difficult to track consumer locations on mobile devices, which is a very rich area for retailers. But the bills suffer the same critical flaws that have inflicted earlier Senate technology efforts—such as one dealing with data-breach disclosures and another trying to limit E-Commerce tracking attempts—namely that they are sufficiently vague to completely undermine the intended restriction.

The first bill, introduced by Senator Al Franken (D-Minn.), is called The Location Privacy Protection Act of 2011. It is trying to force telcos and retailers to get the consumer’s “express consent before collecting his or her location data and to get that customer’s express consent before sharing his or her location with third parties.” The second bill, introduced by Senator Ron Wyden (D-Ore.), is called The Geolocational Privacy and Surveillance (GPS) Act. It is designed to restrict how government investigators can access mobile-location data.

The key problem is that these bills are focused on location-based mobile services, and they tend to forget that the most common location-based mobile service is getting the phone to ring when receiving a call. Second, there are no significant instructions about how telcos are supposed to notify consumers and get their consent.

This creates a very easy way to comply with the wording of the law, while cleanly sidestepping its intent. What’s to prevent a company from burying a few extra lines in the middle of the small-print legal documents that consumers need to agree to before receiving phone service? Something like “We need to know your phone’s location so your calls will reach you. Accepting this service will mean that we may therefore track your location. We sometimes use third parties to help route and manage our calls. Accepting this service means that we have permission to share with these firms the data they need to perform their duties.”

That sounds innocuous—for the nine people who end up reading the fine print. But there’s no viable way for the consumer to opt out. But there’s a better way: Force telcos to offer two services—one with tracking to make the phone ring and to support emergency services and one with all tracking enabled. And then borrow the techniques from the U.S. Surgeon General, whose cigarette warning dictates font size in relation to the package size and specifies the exact wording.

Senator Franken’s bill, though, has an honorable objective. Here’s part of The Location Privacy Protection Act of 2011’s summary.