October 21, 2002

Wireless Location Privacy and the FCC

Holland & Knight Newsletter
Peter M. Connolly

A technological revolution, involving wireless location finding capability, is being brought into being by FCC regulations essentially unknown to anyone but the wireless industry.  It is universally understood that there has been a wireless revolution in the last decade, which has taken place in conjunction with the computer revolution.  However, for the most part, wireless technology has been limited to voice messages.  It has replicated the telephone in being able to provide voice communications, with a limited data capacity. 

However, explosive changes are coming in the realm of wireless communications.  First, so called third-generation (3G) wireless services will vastly increase the capacity of wireless systems to send and receive data.  Second, a revolution in wireless location-finding technology will open up new commercial opportunities as well as generating serious new social and legal privacy issues. 

The location-finding revolution has come about as a direct result of an FCC  proceeding dealing with 911 services.  When "wireline" customers call "911" for emergency assistance, the public safety answering point (PSAP) is advised automatically of the location of the phone from which the call has been placed.  However, wireless calls historically have not provided such automatic location information (ALI).  At present, in most locations, if wireless customers cannot describe their location when placing a 911 call,  the police or other emergency services personnel have to determine the location of the wireless caller by searching within the area covered by the entire cellular system from which the call was made.

Over the past decade, the FCC has sought to rectify this problem by ordering cellular and Personal Communications Services (PCS) carriers to implement technological changes that will allow police and other emergency personnel to determine the actual location of 911 callers within a "cell."

During so-called Phase I "enhanced 911" (E-911), which began in 1998 and is now in effect for any wireless system that serves a PSAP able to process the data (many of them still cannot), wireless carriers must deliver to an emergency dispatcher the phone number of the phone from which the call has been placed, thus identifying the subscriber and the specific "cell" or "base station" which received the call from the wireless phone.  Wireless systems also are required to transmit 911 calls from non-subscribers, but they cannot transmit a telephone number for such callers. Nonetheless, the Phase I rules are a large advance over the prior situation, as many systems can now enable PSAPs to identify the emergency caller and the general area from which he or she made the call.  However it is not yet a complete solution to the location problem.

Accordingly, the FCC has adopted so-called "Phase II" E-911 requirements.  Such requirements were supposed to have taken effect on October 1, 2001, but most, if not all, wireless carriers have sought waivers seeking an extended implementation period.  The FCC has granted those waiver requests, and the initial effective dates for different carriers now range from late 2001 to 2003, with the larger carriers having the earliest compliance obligations. 

Under Phase II E-911, carriers can use either "handset-based" or "network-based" technology.  Handset-based technology relies on specially equipped wireless phones receiving detailed location information from global positioning satellites (GPS) and transmitting that location data to their system switches and then to PSAPs.  Network-based technology relies on techniques that are similar to radar "triangulation" to determine the specific location of wireless customers.  Both techniques are expensive and difficult to implement. 

By the end of  2005, however, virtually all handsets in wireless systems employing a "handset" solution are supposed to be "location capable"; by approximately the same time, network-based systems are supposed to be able to locate E-911 callers with similar accuracy.

This type of location-finding accuracy will not only improve emergency assistance but will also open up a variety of commercial possibilities.  Advertising of various types could be made location specific.  Wireless customers could make their whereabouts known to friends who also are wireless subscribers and could, in turn, determine the location of those friends.

Such commercial possibilities will be further enhanced if and when the FCC re-allocates additional spectrum for 3G wireless purposes.  3G promises, among other innovations, full motion video and much higher speed data capabilities than are presently possible.  Coupled with location-finding technologies, such enhancements could transform the fundamental purposes of wireless telephones.

How are these technological changes to be regulated by the FCC to protect customer privacy?  As shown below, the FCC believes that it already has sufficient regulations in place.

FCC Regulation of  Wireless Location Technology

Wireless carriers must treat user location information as "customer proprietary network information" (CPNI), under FCC rules.  Such information may be supplied to a PSAP or other provider of emergency services without express customer consent, (the customer is presumed to consent by calling 911) but such information, as CPNI, cannot be used or disclosed to third parties for any other purposes, including commercial purposes, without express customer consent. 

The FCC recently completed a rulemaking dealing with CPNI and has adopted regulations that became effective October 21, 2002, dealing with the disclosure of CPNI, including wireless location information, to unaffiliated third parties such as advertisers. Carriers will be required to obtain "opt in" approval for any disclosure of CPNI to any unaffiliated third party.  The "opt in" approval method for obtaining customer consent requires that the carrier obtain from the customer affirmative, express consent allowing the requested CPNI  disclosure.  The required notice to the customer regarding his or her CPNI rights can be oral, written or electronic. 

However, the FCC's action has left open many other issues.  May the states assert jurisdiction over location privacy as well, or have the FCC regulations occupied the field and preempted state requirements?  The FCC has expressed no opinion.  Nor do the FCC's rules, which deal with the carrier/subscriber relationship, deal with the location privacy rights, if any, of employees or customers of the subscriber. 

Employers may be able to use wireless location-finding technology to monitor their employees' activities.  Car rental companies could monitor the speeds at which their rental cars were driven.  These subjects are likely to attract attention from state and federal administrative and legislative bodies other than the FCC. 

Both wireless carriers and entities seeking to make use of this technology for commercial purposes should follow legal developments in this rapidly changing environment. 

Note:  A longer version of this article appeared in the September 30,2002, issue of the BNA "Privacy and Security Law" newsletter.

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