THe. And Privacy Fronts 1. Letter from the Editor. May 15, 2011 VOLUME 41 NUMBER 9. A. Overview. Letter from the Editor...1. Geolocation Technologies:
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1 THe LAWYER S brief Geolocation Technologies: Emerging Concerns on the IP And Privacy Fronts 1 I. Introduction A. Overview The relationship between geolocation data as intellectual property and the limitations that privacy laws have on said data is both complex continued on page 2 Letter from the Editor Dear Subscribers: This issue of THE LAWYER S BRIEF discusses the collection and use of geolocation data. Our first article was coauthored by Chicago partner Kenneth Dort and associate Jeremiah Posedel of Drinker Biddle & Reath LLP for presentation at the American Bar Association s 26th Annual Intellectual Property Law Conference in Arlington, Virginia, April 6-9, This article provides practical advice to mitigate privacy issues surrounding the use of geolocation data. The second article is a synopsis of the Chitika settlement with the FTC pointing to the difficulties that many online operators face when they prepare privacy policies. Also included is a discussion of the collection and use of geolocation information, including FTC regulation of behavioral advertising. The case law describes and defines geolocation data from its technical creation to its manner and use. This issue concludes with a sample interactive marketing agreement between GOOGLE INC. and AOL INC.; the appendix of which provides sample policy guidelines for accessing search and/or advertising services through client software applications. IN THIS ISSUE: Letter from the Editor...1 Geolocation Technologies: Emerging Concerns on the IP And Privacy Fronts...1 I. Introduction... 1 II. Geolocation Data as Intellectual Property... 2 III. Privacy Issues Affecting Geolocation Data...3 IV. Conclusion... 4 Online Advertising Company Chitika Enters FTC Consent Agreement for Deceptive Opt- Out Policy... 5 Collection and Use of Geolocation Information... 5 I. Introduction... 5 II. Online Advertising and Privacy Concerns... 6 III. Selected Provisions of Federal Consumer Law... 6 IV. Selected Geolocation Data Cases V. Conclusion Sample Interactive Marketing Agreement between AOL Inc. and Google Inc...19 Thirtieth Amendment To Amended And Restated Interactive Marketing Agreement Very truly yours, Carol L. Fetter Principal Attorney Editor
2 the lawyers brief and developing. This presentation will address some of the key issues regarding the collection and use of geolocation data, and provide some practical advice on practices that will help mitigate many of the privacy issues surrounding the use of geolocation data. B. What is Geolocation Data? Geolocation data is the information collected through tracking technologies or other means regarding an individual s location in the world. Geolocation data is collected through numerous means, as discussed below, and can be used for endless purposes, including: providing travel directions, unlocking vehicle doors, avoiding traffic congestion, directly marketing products and services, locating employees, assisting in an emergency, monitoring children or family members with memory deficiencies, locating gas stations, and monitoring sex offenders and other criminals. Despite these legitimate, and in some instances invaluable, uses, the collection of geolocation data also presents individuals, businesses and governments with serious privacy concerns and responsibilities. For example, as individuals, do we impliedly give up our right to privacy when we knowingly carry a device with tracking capabilities? What are the entities who collect this data doing with it and with whom are they sharing it? Are there other forms of data (financial or otherwise) that indirectly include geolocational information? And finally, is there legislation in place that could balance the privacy concerns of individuals with the valid intellectual property rights of geolocation data collectors? C. Ways Geolocation Data is Collected and who is Collecting It? Geolocation data is collected in a variety of ways, including, but not limited to: global positioning system ( GPS ) devices, web browsing via IP addresses, mobile 2011 Thomson Reuters. All rights reserved. THE LAWYER S BRIEF (ISSN ) is published monthly by Thomson Reuters, 610 Opperman Drive, P.O. Box 64526, St. Paul, MN POSTMASTER: Send address changes to THE LAWYER S BRIEF, 610 Opperman Drive, P.O. Box 64526, St. Paul, MN This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) ; fax (978) or West s Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) Please outline the specific material involved, the number of copies you wish to distribute and the purpose or format of the use. telephones, credit/debit card transactions, highway tollpaying devices, recharging connection for electric automobiles (via Smart Grid technology), geotags in photos, and posts on Facebook and other social networking sites. As this information is collected, it is becoming increasingly easy for the companies providing these services and/or those with whom they share it to monitor an individual s routines and transactions and to accurately predict an individual s future course of action. With these predictions, businesses are able to target customers on a time and location specific basis, making geolocation data a valuable component of intellectual property for any business. The entities collecting geolocation data are numerous, especially when, as discussed below, one considers the number of businesses that collect geolocation data supplemental to other data being collected (for example, credit card companies obtain geolocation data every time an individual uses their credit card; however, the collection of geolocation data is supplemental to the primary purposes for collecting the underlying transactional information items purchased, amount of the purchase, avoiding fraud, etc.). Geolocation data collecting entities include mobile phone providers, cable providers, internet providers, financial institutions, GPS providers, state toll way agencies, law enforcement agencies, advertisers, and so on. Notably, and as discussed below, there are few restrictions on how these entities can use the geolocation data collected, how long they can store it for, and/or who they can share it with. II. Geolocation Data as Intellectual Property A. Ownership of Geolocation Data Geolocation data is valuable intellectual property that is typically owned by the entity collecting the data, unless transferred or sold to another entity. Therefore, the entity collecting geolocation data whether purposely or supplemental to other information being collected is responsible for the use, maintenance, security, and disposal of such data. B. Geolocation Data as Supplemental Information In addition, as noted above, many businesses collect geolocation data supplemental to other information. For example, when you use your electronic toll-paying device, the state tollway authority knows where you are and each time you go through a toll. As this data is aggregated, patterns may begin to develop. If you go through the same toll Monday through Friday at the same times, THOMSON REUTERS
3 the lawyers brief the tollway authority not only knows you paid a toll, but it knows approximately what time you go to work every day and what time you come home (and by what route). Although this information may not necessarily be valuable to the tollway authority, other businesses may have a use for such information. Moreover, geolocation data combined with other personal information on file with the state tollway authority may be valuable to criminals and other unauthorized individuals. As this example points out, many businesses that monitor individuals collect geolocation data even when it is supplemental to some other business purpose. III. Privacy Issues Affecting Geolocation Data A. Overlap of IP and Individual Privacy Concerns As should be obvious by now, geolocation data can be valuable intellectual property to businesses and advertisers. Geolocation data can tell businesses a lot about an individual s behaviors and habits, allowing businesses to predict an individual s actions and target them in unprecedented ways. This increasing ability to combine data from many sources with an individual s geolocation data means not only that individuals can be tracked with respect to their physical movements, but also with respect to their other activities, like buying habits and typical routes to work. Moreover, even if an entity has no direct use for the geolocation data it is collecting, advertisers and similar businesses are more than willing to purchase the data for their own specific needs making geolocation data valuable to its owner, even when the owner has no direct use for the data. However, it goes without saying that most consumers do not want advertisers and business to know their every movement and to target them at any time (just think for a moment how annoying telemarketing calls at dinner time were now imagine being targeted at any time on your mobile phone, etc.). Instead, most individuals expect when they know that their geolocation data is being collected that the data is being used for a specific and limited purpose. If the tollway authority is collecting geolocation data, then consumers likely expect that the data is being collected for the limited purpose of monitoring toll payments. If a financial institution is keeping records of a consumer s credit card transactions, then the consumer likely expects that the geolocation data is being used to prevent fraud and to monitor purchases. If a consumer s GPS device information is being collected, consumers likely expect that the information is being used solely for providing directions and avoiding traffic. Privacy concerns arise when geolocation data collectors use the data for purposes other than what the consumer reasonably expects. However, the temptation to use geolocation data for other purposes can be tempting, especially when geolocation data is combined with other consumer information (e.g., name, address, etc.). This combination allows businesses to send individualized and targeted advertisements to consumers or to monitor an individual s every movement acts that many consider to be an invasion of privacy arising from individual profiling resulting from the aggregation of previously disparate and unconnected bits of personal data. Accordingly, it is easy to see how the collection of geolocation data can collide with consumer privacy concerns. The more difficult analysis is determining when a business goes beyond the valid use of geolocation data and encroaches on consumer privacy expectations. Unfortunately, there is little legislation or guidance on this issue. B. Collecting, Using and Maintaining Geolocation Data 1. Existing Legislation and Policies Statutes and regulations regarding the collection, maintenance, and use of geolocation data alone are still limited at both the state and federal levels. However, when geolocation data is combined with other information that allows an entity to identify a specific individual and/or a specific industry or category of information that is itself regulated (e.g., financial records, health information, mobile carriers, etc.), the data can be considered personally identifiable information ( PII ) and expose an entity to additional laws and regulations. For example, Title II of the Communications Act imposes various obligations on telecommunications entities regarding the handling of customer information, which includes geolocation data, and requires customer consent before such information can be shared. 2 Further, the Cable Communications Policy Act of 1984 (added to the Communications Act of 1934), which applies to cable operators who may collect geolocation data through internet services or other means, imposes various obligations on cable operators that involve PII. 3 In the area of online advertising, where advertisers use geolocation data to determine an individual s behavior for marketing purposes, the Federal Trade Commission ( FTC ) issued a report in 2009 containing self-regulatory guidelines for the online advertising industry. 4 In addition, numerous online advertising industry groups released similar self-regulatory guidelines for industry actors. 5 In its report, the FTC recommends, in part, that entities provide notice on their Web sites that data is being collected, 6 that individuals have the ability to opt-out 2011 THOMSON REUTERS 3
4 the lawyers brief of the collection, 7 that individuals are made aware of any changes in an entity s privacy policy and must provide consent before previously collected data is used in a way not originally stated in the privacy policy, 8 and mandatory opt-in for the handling of sensitive information. 9 However, these recommendations are not binding and only serve as a guide to online advertisers collecting relevant data, except where FTC law explicitly states otherwise. Finally, geolocation data is a hot topic as it relates to the Fourth Amendment and law enforcement surveillance. 10 Although not of significant relevance to this audience, it is important to note that there is still debate as to whether an individual has a reasonable privacy interest in their own movement (i.e., geolocation data). Currently, federal case law generally allows the installation and use of GPS devices by the government to track a suspect s vehicle without a warrant for a limited time. 11 C. How You Should Use Geolocation Data in a Way to Mitigate Privacy Issues There are multiple options to consider in attempting to mitigate privacy issues when handling an individual s geolocation data. In addition, the FTC and other related organizations and industry groups offer ample suggestions to entities keeping sensitive information, including, but not limited to, geolocation data. However, each collecting entity is different and uses geolocation data for different purposes. Regardless, here are some things to consider that can help mitigate any privacy concerns: Know what geolocation data you are collecting, how you are collecting it, how you are using it, and how long you keep it for. Without an understanding of what information you are collecting and why you are collecting it, it is impossible to narrowly tailor your collection and use of geolocation data in a way that mitigates privacy issues while at the same time, allows you to benefit from your valuable intellectual property. If you do retain geolocation data, keep only what is necessary to successfully manage your business and/ or achieve your specified purpose in collecting the data nothing more. Ensure that the geolocation data you retain is secure. If someone is able to access geolocation data without permission or authorization in combination with other sensitive data you expose yourself to state breach notification laws and potential litigation from affected individuals. Retain geolocation data for only as long as you need it and ensure that you properly dispose of what you no longer need. Avoid merging geolocation data with personally identifiable information (full name, social security number, driver s license number, financial account information, health information, birthday, etc.). Once you combine this information, you may open yourself up to additional laws and regulations. Provide clear notice to individuals of the geolocation data collected, how it is collected and why it is collected. Moreover, whenever possible, give individuals the ability to opt-in or, at the very least, op-out of the data collection. Whenever possible, do not share geolocation data with other businesses. Create an internal plan to respond to security breaches and monitor state data breach notification laws to ensure that you comply with relevant statutes in the case of a breach of geolocation data. Depending on your business and your purpose for collecting geolocation data, it may be impossible to implement all of these suggestions. However, the more you are able to limit your collection, use and retention of geolocation data, the more successful you will be in mitigating individual privacy concerns. IV. Conclusion Geolocation capabilities are rapidly expanding both qualitatively and in breadth, and as usual, the technology is well ahead of the law. Legislators need to focus on the current status of these developing capabilities and implement a flexible framework by which to protect individuals from unexpected intrusions into their privacy, while at the same time responding to the always-changing face of technology. As with the areas of social networking and behavioral advertising, action is becoming more urgent. Given the national scope of this dilemma, Congress needs to join with the Federal Trade Commission now to devote the resources necessary to address these issues and to keep pace with the accelerating technology sector. ENDNOTES 1. This article was reprinted with permission. It was authored by Kenneth K. Dort and Jeremiah J. Posedel of Drinker Biddle & Reath LLP. Mr. Dort is a partner, and Mr. Posedel is an associate, in the firm s Intellectual Property Practice Group, focusing on information technology implementation disputes, intellectual property protection, data security, and privacy matters out of the firm s Chicago office. The opinions expressed herein are solely those of the authors U.S.C.A U.S.C.A THOMSON REUTERS
5 the lawyers brief 4. Federal Trade Commission Staff Report, Self-Regulatory Principles For Online Behavioral Advertising: Behavioral Advertising Tracking, Targeting & Technology (Feb. 2009), available at opa/2009/02/behavad.shtm ( Staff Report ). 5. Practising Law Institute, Online Behavior Advertising: Industry s Current Self-Regulatory Framework is Necessary, but Still Insufficient On Its Own To Protect Consumers, 994 PLI/Pat 797, 804 (West 2010). 6. Staff Report at Staff Report at Staff Report at Staff Report at Although the FTC has not specifically defined sensitive data, precise geographic location is provided as an example of sensitive data. 10. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Constitution, Fourth Amendment. 11. See, e.g., U.S. v. Moran, 349 F. Supp. 2d 425, 432 (N.D. N.Y. 2005); but see U.S. v. Maynard, 615 F.3d 544, 558 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 671, 178 L. Ed. 2d 500 (2010) (warrantless use of global positioning system (GPS) device on defendant s vehicle for a month was a search). Online Advertising Company Chitika Enters FTC Consent Agreement for Deceptive Opt-Out Policy By Sam Hudson, Counsel, Foley Hoag LLP 1 Targeted online advertising has been the focus of much discussion since the release of the FTC s Do Not Track proposals late last year. User tracking for advertising purposes is also the focus of the FTC s latest privacy enforcement action, which has resulted in a consent agreement with an online advertising company, Massachusettsbased Chitika, Inc., which creates ads for such major publishers as the Hearst Corporation and Salary.com. Chitika uses cookies to track Internet users, so as to display behavioral advertising to them. Chitika allowed users to opt-out of receiving these cookies, but what Chitika did not disclose was that the opt-out only lasted for 10 days. The Federal Trade Commission (FTC) alleged that such a short opt-out period was deceptive and a violation of the FTC Act. The FTC has reached a settlement with Chitika in which Chitika has agreed to honor any user opt-out of tracking for at least five years. Chitika has also agreed to display more prominent opt-out mechanisms. The consent agreement prohibits Chitika from misrepresenting the extent of its data collection about consumers or the extent to which consumers can control the collection, use or sharing of their data. Chitika s former behavior is a gift to those seeking stricter regulation of online advertising, as it perpetuates the notion that online advertisers are watching you, Big Brother-style. It also supports the arguments that the FTC has made that many privacy policies are not sufficiently clear in their disclosures about user tracking. Even Chitika s revised privacy policy raises questions for this writer, as it states that Chitika does not collect any personally identifying user-level information. However, almost all online operators can and do collect an IP address of the relevant computer, and surely the IP address of any computer that is used by only one person is ultimately personally identifying information? This points to the difficulties that many online operators face when they prepare privacy policies. The definition of personal information is not always clear, and even the statutes that regulate privacy in the U.S. have inconsistent definitions for this term. Add to that the uncertainty as to exactly how much disclosure is required in a privacy policy, and it is easy to see how companies can get into trouble, even if their errors are not as obvious as Chitika s. ENDNOTE 1. Reprinted with permission. The opinions expressed herein are solely those of the author. First published in by Foley Hoag LLP. Copyright 2011, Foley Hoag LLP. All Rights Reserved. Collection and Use of Geolocation Information By Publisher s Editorial Staff I. Introduction The collection and use of geolocation data involves numerous legal issues. Federal legislation currently provides for some subscriber privacy protection and FTC enforcement. Case law describes and defines geolocation data from its technical creation to its manner and use. The definition of what constitutes geolocation data tends to arrive in the patent and licensing context; while 2011 THOMSON REUTERS 5
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