Evan Schuman's StorefrontBacktalk

Here’s part of The Location Privacy Protection Act of 2011’s summary. “Current federal laws allow many of the companies that obtain location information from their customers’ cellphones and smartphones to give that information to almost anyone they please—without their customers’ consent. While the Cable Act and the Communications Act prohibit cable companies and phone companies offering telephone service from freely disclosing their customers’ whereabouts, an obscure section of the Electronic Communications Privacy Act allows smartphone companies, app companies and even phone companies offering wireless Internet service to freely share their customers’ location information with third parties without first obtaining their consent,” the bill’s official summary says. “This legal landscape creates a confusing hodgepodge of regulation. Thus, when a person uses a smartphone to place a phone call to a business, that person’s wireless company can’t disclose his location information to third parties without first getting his express consent. But when that same person uses that same phone to look up that business on the Internet, because of ECPA, his wireless company is legally free to disclose his location to anyone other than the government.”

The bill, though, only requires the “express authorization of the individual that is using the electronic communications device,” something that can be easily satisfied by burying in the standard agreement.

The Wyden bill, which doesn’t impact retailers as directly, is more strict when it comes to restricting government use of location data. Well, actually, it sounds like it is, until it gets to the exceptions area. That bill says it will not be illegal to access mobile-location data if the government employee is “lawfully engaged in an investigation and the person acting under color of law has reasonable grounds to believe that the geolocation information of the other person will be relevant to the investigation.”

If the intent of the Wyden bill is to prevent law enforcement agents from using this mobile-location data carelessly, why has an exclusion been included that J. Edgar Hoover could have written? Unless the FBI agent is herself committing a theft, the above exception will allow a warrantless search of all such data if the agent believes the data “will be relevant” to an investigation.

Note to Senators: Want to propose laws that actually close the loopholes you publicly condemn? Next time, don’t let the lobbyists for the entities you want to restrict write the exemptions. There’s a reason they offer their writing services for free.