Beacon Technologies by Stephen Statler

Author:Stephen Statler
Language: eng
Format: epub
Publisher: Apress, Berkeley, CA

The Legal Framework in the United States

Perhaps contrary to popular belief, the United States regulates privacy quite extensively. However, instead of comprehensive privacy laws governing all personal data processing such as in the EU, the United States has multiple sectoral laws and regulations that govern different commercial communication situations. This privacy scheme has rightly often been referred to as a “patchwork quilt.”4

A number of parties are instrumental in shaping the U.S. legal framework in the privacy field. These parties include groups dedicated to promoting privacy and the regulation of privacy, private litigants who have sued companies for violations of privacy laws, the Congress, and the Federal Trade Commission (FTC) , which focuses on encouraging a self-regulatory framework and promotes notice, choice, and transparency, as well as the advertising industry.5 The FTC has become especially active since 2010, and it has put great effort into promoting privacy, greater transparency, and consumer control over information gathering. The U.S. Department of Commerce also issued a green paper in 2010 about data privacy in which it, inter alia6, promoted the significance of consent.7 At the state level, California has definitely been the most active in regulating privacy.

The legislative branches, both at the federal and state levels, have been persistent in their efforts to protect privacy. During the past few years, multiple bills have been proposed in Congress, albeit without much success, with the intent to protect individuals’ geolocation information. For example, the Commercial Privacy Bill of Rights Act of 2011 would have required an affirmative opt-in consent for the collection of sensitive information.8 The Geolocation Privacy and Surveillance Act (GPS Act) would have set forth a clear legal framework for the usage of, and access to, geolocation information. The bill was introduced in the Senate and in the House in March 2013. Most recently, the Location Privacy Protection Act of 2015 (LPPA) was reintroduced by Minnesota Senator Al Franken. The LPPA would have prohibited companies from collecting or disclosing individuals’ geolocation information from electronic devices without the user’s affirmative express consent.9 State legislatures have also considered regulating geolocation information, however, more so with regards to law enforcement access.10

Thus, federal law in itself does not currently require businesses to obtain consent for the collection of geolocation data, or to disclose whether or not they collect geolocation data. They are only prohibited from misrepresenting their data collection practices. However, note that if the Location Privacy Protection Act of 2015 were to pass, consent would be required before the collection of geolocation data.

The FTC has played a major role in enforcing consumer privacy, also on the issue of geolocation privacy. Even though location-based advertising is not currently subject to any specific federal regulations, FTC guidelines and industry standards do require that location information not be collected or used without consumer consent. The FTC has been involved in multiple cases where the collection of geolocation information was an issue. For instance, FTC v. Goldenshores Technologies was the first case in which the collection and sharing of geolocation data was the primary focus of the FTC.

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