Cell Phone Pinging – Cell Phone Privacy and Applicable laws

As you’ve seen in previous blog posts, cell phone location information, a.k.a. cell phone pinging, has a protected status under the law. Let’s talk about privacy, look at the laws we referenced, and why.

Privacy is Important so Cell Phone Pinging is Regulated

Most of us wouldn’t make our whereabouts known to anyone, including strangers, unwillingly. Why would we? In the crudest example, this would allow anyone to track our children’s whereabouts.

Cases about intrusions on privacy are in the court systems now and there are past cases to consider. In one case, a private investigator placed a GPS on a vehicle that he was surveilling—and he ended up having felony stalking charges filed against him—State of Colorado v. Stitt. Another case involved pinging a cell phone for location over time—United States v. Skinner—where the justices may have confused GPS and pinging—(GPS is a receiver of signals—Pinging is transmitting a signal).

In perhaps what could end as a landmark case, United States v. Jones, the Supreme Court upheld that installation of a GPS device was a Fourth Amendment “search.” However. The majority of the court declined to say whether or not placing the GPS device on a car without permission was “unreasonable” or required a “warrant,” under the Fourth Amendment.

No Consent, No Location

It’s clear. Outside of law enforcement, the sale or possession of cell phone location information is criminalized, if you do not have consent. Why is consent necessary? Because cell phone location information falls under the definition of CPNI (customer proprietary network information) and CPNI is protected. Why can the government seemingly track us without our permission, but we can’t track others without their permission? Because the laws make exceptions for law enforcement. It’s worth repeating that without protection of our cell phone location information, someone could locate the whereabouts of our children.

What is the value of our privacy?

That’s the debate unfolding right now. Some say there is no privacy, in theory. Others have polar opposite views, that we should protect our privacy at all costs.

What about Facebook, Twitter, Foursquare and all the other location applications we use each day? All of these apps require our permission and consent to access location information. Not only that, we can opt-out anytime. The carriers would not approve them otherwise, so they’re compliant.

With the release of information by Ed Snowden, subsequent NSA scandal unfolding in June 2013, detailing the types and amounts of data collected and retained by the US government, privacy is now a national debate.

In light of this all, I encourage the reader to put aside their business interests and read what I believe is one of the most, if not the most, prescient legal pieces of all time:  “The Right to Privacy,” written in 1890.

Finally, here are the laws we referenced in the previous 3 blog posts and why they are applicable:

Telephone Records and Privacy Protection Act.

We referenced 4 definitions in this law:

  1. Location
  2. Confidential Phone Records
  3. Sale or Transfer of Confidential Phone Records
  4. Purchase or receipt of Confidential Phone Records

Location
“(A) relates to the quantity, technical configuration, type, destination, location…”

Confidential Phone Records
“(A) relates to the quantity, technical configuration, type, destination, location, or amount of use of a service offered by a covered entity, subscribed to by any customer of that covered entity, and kept by or on behalf of that covered entity solely by virtue of the relationship between that covered entity and the customer; is made available to a covered entity by a customer solely by virtue of the relationship between that covered entity and the customer; or

Sale or Transfer of Confidential Phone Records
Prohibition on Sale or Transfer of Confidential Phone Records. Except as otherwise permitted by applicable law, whoever, in interstate or foreign commerce, knowingly and intentionally sells or transfers, or attempts to sell or transfer, confidential phone records information of a covered entity, without prior authorization from the customer to whom such confidential phone records information relates…

Purchase or Receipt of Confidential Phone Records
(1) Except as otherwise permitted by applicable law, whoever, in interstate or foreign commerce, knowingly and intentionally purchases or receives, or attempts to purchase or receive, confidential phone records information of a covered entity, without prior authorization from the customer to whom such confidential phone records information relates, or knowing or having reason to know such information was obtained fraudulently, shall be fined under this title, imprisoned not more than 10 years, or both.

Federal Trade Commission Act 

Unlawfulness of Unfair or Deceptive acts
(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.

Telecommunications Act of 1996

A. Privacy of Customer Information
(A)…information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service …
iv. Federal Communications Commission declaratory ruling on June 27th, 2013.
https://www.fcc.gov/document/fcc-acts-protect-private-consumer-information-wireless-devices
A. CPNI specifically includes cell phone location as confidential record
“This sensitive information can include phone numbers that a customer has called and received calls from, the durations of calls, and the phone’s location at the beginning and end of each call.”

*We’re not lawyers, we’re certainly not your lawyer. Nothing here or in the associated posts on this topic should be interpreted as legal advice or a commentary on how others do business.


Read our Cell Phone Pinging Series:

  1. A Cell Phone Ping: What’s The Law and What’s The Lie?
  2. Cell Phone Pinging for Locating a Cell Phone: What is Non-Compliance?
  3. Locating a Cell Phone with Cell Phone Pinging: Does it Fall Under Compliance?
  4. Cell Phone Pinging – Cell Phone Privacy and Applicable laws