Antitrust Law Daily Wrap Up, PRIVACY NEWS: Location Privacy Protection Bill Approved by Senate Judiciary Committee, (Dec 14, 2012)

The Senate Judiciary Committee on December 13 approved the proposed Location Privacy Protection Act of 2011, although further work on industry and law enforcement concerns about the bill are expected before it is brought to the floor.

The bill (S. 1223), sponsored by Senator Al Franken (D., Minn.), would require companies to receive express authorization from mobile device users before collecting or sharing location information with third parties. Text of the bill as introduced appears here.

In addition to changes that Franken was already considering last week, when the markup was postponed at ranking member Senator Chuck Grassley’s (R., Iowa) request, a substitute amendment adopted at yesterday’s markup excludes an individual’s business address and all IP addresses — not just temporary IP addresses — from the definition of geolocation information. The substitute amendment also corrects an error in the bill so that companies that collect information from a mobile device must reveal all third parties—not just third-party companies—with whom they share the information.

The substitute amendment expands exceptions to prevent delays in emergency situations so that location information can be disclosed pursuant to a legally authorized law enforcement or intelligence agency request or other legal process.

It clarifies that user consent can be obtained orally or in writing, as well as through the device interface, and that companies are not responsible for getting additional consent from users who borrow or share a device, if they have no way of knowing this.

The substitute amendment excludes from this provision companies that run their software in secret to avoid allowing stalker apps to take advantage of the provision, caps the statute of limitations at 10 years, and clarifies that stronger state privacy laws are not preempted.

Senator Chuck Schumer (D., N.Y.) said that he would support the bill, but that it still needs “a lot of work” and that he reserved the right “to object to further movement unless and until more work is done.”

Grassley praised some of the changes in the substitute amendment and proposed an amendment that would require state attorneys general to disclose arrangements with private attorneys they contract with to pursue enforcement actions under federal law.

Committee Chairman Patrick Leahy (D., Vt.) said, “Maybe that’s one of those things that has to be looked at more between now and the floor.”

Senator Richard Blumenthal (D., Conn.), a former state attorney general, objected to the amendment, saying that how a state AG carries out his job “is a matter of state rights.”

Grassley’s amendment was defeated 9–8, with one pass. He offered and withdrew an amendment “to relieve consumers from having to give consent several times a day” because an app might share information with many third-party entities. Franken said that the average app only shares information with one or two other entities.

The committee passed S. 1223, as amended, on a voice vote. Grassley did not oppose it, but he said that Senators Mike Lee (R., Utah), Jeff Sessions (R., Ala.), and Tom Coburn (R., Okla.), who were not present, wished to be recorded as opposed.

After the vote, Senator Sheldon Whitehouse (D., R.I.) said, “I think there are still some issues to be worked out with law enforcement but those are minor.”

News: Privacy