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Markey Formally Introduces Mobile Device Privacy Bill

COMMUNICATIONS DAILY

Rep. Ed Markey, D-Mass., introduced the Mobile Device Privacy Act on Wednesday, aimed at bringing greater transparency to third-party tracking of consumer devices (http://xrl.us/bnpg4t). The legislation follows last year's revelation that diagnostic analysis providers like Carrier IQ used software to collect certain user data from cellphones, including dialed phone numbers and visited URLs. Privacy groups lauded the bill while carriers and some cellphone manufacturers declined to comment.

"Just because a mobile device is hand held doesn't mean it should hand over personal information to third parties without permission," Markey said in a news release Wednesday. "This legislation will provide greater transparency into the transmission of consumers' personal information and empower consumers to say no to such transmission." Markey, a member of the House Commerce Committee and co-chair of the Privacy Caucus, previously asked the FTC to investigate Carrier IQ, which had no comment for this story. The bill is unrelated to Markey's Wireless Surveillance Act, which aims to force law enforcement agencies to disclose the nature and volume of consumer mobile information requests they make.

Under the new bill, disclosure of cellphone monitoring is required at the point of sale and afterwards if the carrier, manufacturer, or operating system later installs monitoring software or if a consumer downloads an app and that app contains monitoring software. Carriers, manufacturers and mobile application stores would be required to disclose that monitoring software has been installed on the phone. In addition they would be required to specify the types of information being collected, identify the parties to which the information is transmitted, and disclose how such information will be used, the bill said.

Companies would be required to acquire consumer consent before monitoring software can begin collecting and transmitting information, the bill said. It would require companies that receive personal information from monitoring software to implement policies that secure the information, it said. The bill also would create an FCC and FTC enforcement regime that requires all agreements on information transmission to be filed with the agencies. States and individuals would also be able to bring private and civil actions against companies for violations under the bill. The bill closely tracks a discussion draft that was released in January (http://xrl.us/bnpgon).

Consumer advocacy and privacy groups hailed the bill for giving consumers greater control over the use, security and dissemination of their information. "The current lack of transparency in the mobile phone ecosystem harms consumers, who frequently have no way of knowing what data is collected about their mobile phone use and with whom that data is shared," said Sarah Morris, policy counsel for the New America Foundation's Open Technology Institute. "Increasing transparency and providing mechanisms for meaningful user consent is an [sic] critical step in ensuring that mobile consumer privacy is protected, and we have asked the FCC to impose disclosure requirements on mobile providers in their collection of certain consumer data." Markey's bill would serve as an "important ,complement to that work," she said via email.

Consumer Watchdog advocate John M. Simpson told us he strongly supports the bill:  "Consumers need to have control over what data is gathered by their mobile device." Markey's bill will help "restore control over mobile data to the user -- where it belongs," said Jeff Chester, executive director of the Center for Digital Democracy. "Our mobile devices should not be 'phoning home' without our express consent. As consumers increasingly rely on their phones for financial, health and other highly personal services, privacy should come first," he said.

Markey's bill is the "wrong way to go," said Software & Information Industry Association Vice President-Public Policy Mark MacCarthy in a blog post (http://xrl.us/bnpg7s). The bill would impose "rigid privacy rules on the mobile industry that can only lead to stagnation and a loss of innovative dynamism," he wrote. "Rather than over-regulating an industry that holds such potential for economic growth, Congress should be following the House Energy and Commerce Committee's lead in supporting the industry," he said, referring to a mobile app hearing in the committee Wednesday (see related report in this issue). CEA said it was studying the bill but would not comment "since the use of this sort of software is currently under active litigation," their spokeswoman told us.

Carriers were largely silent on the issue despite their recent objections in FCC filings to new privacy rules. Sprint would not comment on the legislation but said in a statement from the company's spokeswoman it adheres to legal and corporate privacy policies with regard to its customers' data. "Sprint is committed to respecting and protecting the privacy and security of each customer's personally identifiable information and other customer data," the spokeswoman said. Verizon, T-Mobile and Google declined to comment, while CTIA, AT&T and Apple did not respond to our requests for comment. CTIA and the four major carriers had previously urged the FCC not to impose new rules to protect ,mobile privacy and security in their comments related to a May 25 public notice (CD Aug 1 p1).

The GAO will recommend that NTIA establish better controls to ensure more ,accurate agency data on spectrum use, said prepared testimony of Mark Goldstein, ,GAO's director of physical infrastructure issues. The testimony identified several barriers to federal spectrum sharing, including a lack of incentive for stakeholders to participate and limited federal budgets to upgrade spectrum ,equipment. Creating new spectrum usage fees, encouraging greater research and ,expanding the availability of unlicensed spectrum could provide greater incentives, he plans to say. GAO will issue a full report on federal spectrum sharing in the fall, he'll say.