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Senate Judiciary Committee Approves S. 1223, Location Privacy Protection Act, Sponsored by Senator Al Franken

December 14, 2012 | Posted by paul.martino@alston.com | Topic(s): Online Privacy, US Congress, Legislation, Mobile Technologies, Privacy, Children's Privacy, Senate, Mobile Privacy

Last evening, the Senate Judiciary Committee approved by voice vote a location privacy bill -- S. 1223, the Location Privacy Protection Act -- sponsored by Senator Al Franken (D-MN) and cosponsored by four other Democratic members of the committee. In his remarks before the vote, Senator Franken stated that “companies that collect our location information are not protecting it the way they should.”

As amended by the committee, the bill would require notice to, and the “express authorization” of, individuals using mobile devices before information about the location of the device could be collected, recorded or shared with a nongovernmental individual or entity. The bill defines express authorization as “affirmative consent after receiving clear and prominent notice that is displayed by the [mobile] device, separate and apart from any final end user license agreement, privacy policy, terms of use page, or similar document.” The amended bill would also make it a crime to knowingly and intentionally provide mobile device location information that aids the commission of a stalking or domestic violence crime.

Companies in the technology, retail, financial services and Internet advertising sectors, among others, raised a variety of concerns in letters sent by their trade associations and business coalitions to the Senate Judiciary Committee members prior to the committee’s executive session. Notable among these concerns were the breadth of the defined terms in the bill, including what constitutes “geolocation information,” and the potential impact the bill’s provisions could have on innovation in the smartphone and mobile technology marketplaces if enacted as-is by Congress. The U.S. Chamber of Commerce letter called the bill well-intentioned but “seriously flawed because it is overly-broad, ignores technical realities, and fails to recognize successful, ongoing self-regulatory initiatives.” Several other industry letters called for dividing the commercial privacy provisions and the criminal provisions (aimed at stalking and domestic violence crimes) into two separate bills. Splitting the bill would then allow the largely supported criminal portions to move forward unhindered by a continuing debate on the commercial privacy provisions that could take some time to resolve.

In response to industry concerns, Ranking Member Grassley (R-IA), former Ranking Member Sessions (R-AL), and Senators Schumer (D-NY), Coburn (R-OK), and Lee (R-UT) all expressed reservations over the current language of the bill and the need for further revisions to it before it would be ready for Senate passage. Despite these reservations, however, Senators Grassley and Schumer indicated they would vote in favor of the bill at yesterday’s session, but Schumer specifically reserved his right to block further progress of the bill if he’s not satisfied that future revisions assuage industry’s concerns. Senators Sessions, Coburn, and Lee also went on record as opposing the bill and, along with Senator Grassley, filed 17 amendments to the bill representing the various ways in which they would seek to amend S. 1223 to address their concerns.

Senator Franken indicated he would continue to work with industry to improve the bill going forward.

Written by Paul Martino, Partner | Alston & Bird LLP