Update on the FTC Privacy Rule and it’s Impact on “Precise Geolocation Data”

The staff of the Federal Geographic Data Committee (FGDC) facilitated a meeting on Wednesday, April 27 to engage geospatial interests in federal, state and local government agencies, and the private sector in a dialogue with the staff of the Federal Trade Commission (FTC) regarding the FTC staff report, "Privacy in an Era of Rapid Change" and its proposal that firms engaged in collection, sharing or use of "precise geolocation data" about a citizen be required to obtain “affirmative express consent”  or advance approval of each such citizen.

MAPPS Executive Director John Palatiello was invited to the meeting representing the private sector firms in the MAPPS membership.

The meeting resulted in a number of revelations.  But first, a little background.

In February 2009, the FTC issued a report “Behavioral Advertising Tracking, Targeting, & Technology” wherein it defined behavioral advertising as “the practice of tracking an individual’s online activities in order to deliver advertising tailored to the individual’s interests.”  While the report used the term “precise geographic location”, it was limited to internet activities, such as the use of “cookies“ (FTC defined a cookie as a small text file that a website’s server places on a computer’s web browser. The cookie transmits information back to the website’s server about the browsing activities of the computer user on the site.) As a result of this relatively narrow scope of the report, it did not garner the attention of the geospatial community.

Legislation billed as protecting consumer privacy was drafted and introduced in Congress in 2010.  The Privacy report, a follow-up to the Behavior Advertising study, was much broader in its scope, application and reach, as well as its discussion of geolocation and its proposal for regulation of such activities, thus attracting the concern and attention of geospatial professionals.  MAPPS submitted comments to the FTC, issued a call for members' action, made a presentation to the National Geospatial Advisory, and secured letters of opposition to the FTC proposal from FGDC,  the Coalition of Geospatial Organizations (COGO),  numerous MAPPS members and other stakeholders in the geospatial community.    

The MAPPS comment to FTC came on the heels of letters to the FCC, the Commerce Department, and Congress.

The community’s comments to FTC caused the April 27 FGDC-facilitated meeting, held at the U.S. Department of the Interior headquarters building in Washington, DC.

At the April 27 meeting, Palatiello pointed out that since the FTC only has jurisdiction over private, for profit companies (and not nonprofits organizations or universities, or government agencies), the FTC proposal would result in an unlevel playing field and unfair government competition with private firms.  The FTC staff confirmed its existing statutory authority is limited to commercial companies.  The discrimination against these companies was called unfair by a Federal agency official in the meeting.  Palatiello noted that while government agencies are not covered by FTC’s enforcement powers, the FTC privacy proposal did not exempt private firms working as contractors to government agencies.

The FTC staff, led by Christopher Olsen, Bureau of Consumer Protection, as well as attorneys Peder Magee and Katie Ratte of FTC's Division of Privacy & Identity Protection, complimented MAPPS for mobilizing comments from its members and the broader geospatial community.  Olsen called the comments “helpful” to calling attention to the expansive and undefined use of the term “precise geolocation data”.  He said “what you people (geospatial professionals) do is beyond what we intended” and admitted FTC needs to “put meat on the bones” of a definition of precise geolocation data in its final report.

Olson said the FTC staff’s intent is to control “pinpoint unique individuals in a precise location” and the collection of information on the “location of an individual, computer or device”.

Palatiello called such a narrowing “helpful” and “reassuring”.  He noted that MAPPS attempted, but was unable to define “precise geolocation data” for the purpose of FTC or Congressional intentions on privacy, but did recommend an exemption from such term.  That exemption included:

1. Any information about the location and shape of, and the relationships among, geographic features, including remotely sensed and map data;

2. Any graphical or digital data depicting natural or manmade physical features, phenomena, or boundaries of the earth and any information related thereto, including surveys, maps, charts, remote sensing data, and images;

3. Collection, storage, retrieval, or dissemination of graphical or digital data to depict natural or manmade physical features, phenomena, or boundaries of the earth and any information related to such data, including any such data that comprises a survey, map, chart, geographic information system, remotely sensed image or data, or an aerial photograph by surveyors, photogrammetrists, hydrographers, geodesists, cartographers, or other such mapping and geospatial professionals; and

Data originating from commercial satellite systems licensed to operate by the U.S. government, global positioning systems, geographic information systems, and airborne or terrestrial mapping equipment.

Palatiello also echoed comments by MAPPS member Kevin Pomfret, Esq (LeClairRyan, Richmond, VA) that any such definition or exemption must not preclude the development of new technologies, activities or applications or thwart the innovation that is driving the market.