This week, the Senate Judiciary Subcommittee on Privacy, Technology and the Law held a hearing to discuss the Location Privacy Protection Act of 2014, a bill reintroduced in March by Senator Al Franken (D-MN). Most concerned with the potential for misuse and abuse of location data for purposes of stalking and perpetrating domestic violence, Senator Franken, who chairs the Subcommittee on Privacy, made clear at the hearing his view that, “Stalking apps must be shut down.” Franken clarified, however, that his bill is not only intended to protect victims of stalking, but provides basic privacy safeguards for sensitive location information pertaining to all consumers. Most critically, Senator Franken suggested that because location data lacks sufficient legislative protection, some of the most popular apps used widely by average consumers have been found to disclose users’ precise location to third parties without obtaining user permission. Further, he noted that in light of stalking apps that are deceptively labeled as something else, such as “parental monitoring,” it is necessary to create a law with basic rules for any service that collects location information.
The witnesses representing law enforcement, federal agencies, and consumer-advocacy and anti-domestic violence groups gave testimony sharing Senator Franken’s concerns, and also suggested that industry self-regulation in this area so far has not been consistent or transparent. Jessica Rich, Director of the Federal Trade Commission’s Bureau of Consumer Protection, for example, noted that broadly speaking, while many industry groups and individual companies purport to adopt the opt-in model as a best practice, enforcement has shown that the standard is in fact not complied with on a regular basis.
In response, witnesses representing industry largely rejected the notion that legislation like Senator Franken’s is needed at this time. Expressing particular worry that laws and regulations are inflexible and can quickly become outdated in the face of rapidly evolving technologies, Lou Mastria, Executive Director of the Digital Advertising Association (“DAA”), testified that innovation is better served by self-regulation, which can adapt to new business models because it is more “nimble” than government regulation, as subcommittee ranking member Senator Jeff Flake (R-AZ) phrased it. Mr. Mastria pointed to the DAA’s Self-Regulatory Principles as an effective framework for self-regulation. Sally Greenberg, Executive Director of the National Consumers League, however, contested the usefulness of DAA’s code, calling it weak, “full of holes,” and “late to the game,” especially in the face of her view that there is “monumental evidence that self-regulation is not working.”