From POB Editor: HOW THE FTC COULD SHUT DOWN YOUR BUSINESS

"This is from POB Editor Christine Grahl, originally posted on SIGHT LINES, a blog on RPLS.com. Grahl offers insights on issues of interest to surveying and mapping professionals."

Welcome to this week's edition of the POB eNews ...

When Congress failed to pursue several pieces of privacy legislation proposed or introduced in 2010, many in the surveying and mapping professions breathed a sigh of relief. A proposed draft of legislation introduced in May by Rep. Rick Boucher (D-Va.), which was intended to protect personal privacy, would have unintentionally limited the data that could be collected for a broad range of geospatial applications. The language in the bill was far too vague. A similar bill with equally ambiguous language -- HR 5777, the Best Practices Act -- was introduced in July by Rep. Bobby Rush (D-Ill.), but it, too, stalled out. It appeared that all the concern about these proposals had merely been false alarms.

However, new threats loom on the horizon, this time from the Federal Trade Commission (FTC) and the U.S. Commerce Department. In an FTC staff report issued on Dec. 1, 2010, titled "Protecting Consumer Privacy in an Era of Rapid Change," the FTC proposes regulations and policies that could, in essence, shut down the geospatial community.

"There are two major problems with this proposal," said John Palatiello, executive director of MAPPS. "This proposal (like legislation that was introduced but not acted upon by Congress) uses the very broad term 'precise geolocation data' but does not define the term. This is very dangerous. Also, to require that any geospatial firm get 'affirmative express consent' from every citizen about whom precise geolocation data is to be collected is impractical to the point of being impossible. This is not just data about an individual but any 'precise geolocation data.' This would require every citizen to be contacted and approval obtained before parcel data is collected, or imagery, or elevation data or any other geolocation data."

MAPPS, an association of photogrammetry, mapping and geospatial firms that has a strong record of advocacy, submitted a detailed letter on Jan. 4 to the chairman of the FTC, outlining the areas of concern and urging the FTC to remove any reference to "precise geolocation data," more specifically and exactly define the term, and/or include an exemption that would prevent the regulations from harming geospatial businesses.

Palatiello is also encouraging everyone involved in surveying and mapping to review the details of the proposal and submit comments to the FTC prior to the Jan. 31, 2011, deadline.

A report from the U.S. Commerce Department issued on Dec. 16 is raising similar red flags, and Palatiello expects additional legislation to be introduced in 2011 as personal privacy in an era of increased information sharing remains a concern.

"These proposals are poorly written, do not define precise geolocation data, and have serious unintended consequences for industries and professions beyond those these federal authorities are attempting to regulate," Palatiello said. "This is a significant issue and one that we need to address with a unified voice."

What do you think? Will you get involved? Share your thoughts in my Sight Lines blog.

Have a proactive week.
Kristi Grahl, POB Editor

Should the Geospatial Community be Worried About the Federal Agency Reports on Privacy? YES, AND HERE IS WHY!

In response to a recent podcast by Directions Magazine in which MAPPS was not contacted for comment or clarification there was speculation by the hosts. MAPPS would like to clarify the issues and answer the questions raised in the podcast.

The current proposals from the Federal Trade Commission (FTC) and Department of Commerce are both regulations, which “referrers to a specific requirement that can take on various forms, such as industry specific regulation or regulations that are much broader in scope” and not legislation going through Congress. It is because of this “broad scope” that MAPPS has mobilized the National Geospatial Advisory Committee (NGAC), Coalition of Geospatial Organizations (COGO) and law experts in the geospatial profession urge the geospatial community and those affected by the term “precise geolocation data” to take action and comment on the proposals.

Throughout the podcast the words ‘regulation’ and ‘legislation’ were interchangeably misused. As noted in the discussion, MAPPS commented on two separate pieces of legislation one draft and one formally introduced in Congress (HR 5777 ) that ultimately did not move in the House of Representatives or Senate. Regulations, such as those proposed  by the FTC and Commerce are not the same as legislation.

It is because of its experience and expert knowledge of the legislative and regulatory system that MAPPS has urged a response from the entire geospatial community.

Is this a web-based or browser based regulation targeting the Internet?

No, though this is drafted as a ‘consumer protection’ regulation, the fact that the term “precise geolocation data” is included in the regulation without any parameters indicates that no one industry or profession is defined and can affect with any industry/profession that falls within the definition.

Does the draft regulation include satellite, aerial photography and location based services (LBS)?

Yes, due to the broad use of the term precise geolocation data/information through the draft all would be regulated. It is because of this broad definition and the timeframe in which to comment that MAPPS is mobilizing the geospatial community – both producers and users.

Potential for competition with private firms.

The commentators allude to “potentially put US firms in competition with foreign firms who may or may not be under this same rubric and basically have a considerable impact on the business of members of MAPPS”.  This is a real threat.

To understand the extent of the FTC and Commerce proposals, take for example a town such as Reston, Virginia. They hire a geospatial firm to do a master plan, which requires address and parcel data. With the current language, a mapping, planning or A/E firm would have to get ‘prior consent’ from every landowner whose property would be included in the planning. That is impractical to the point of being impossible to comply with.

Comment to the FTC and Commerce.

MAPPS is alerting the greater geospatial community, including data producers and users, and location based service firms, of the immediate threat this has on their businesses and organizations. Social media companies such as Foursquare and MAPPS member firms such as CompassData, Inc., i-cubed and NAVTEQ that utilize and develop location based services (LBS) would be affected by this regulation.

It is because of the MAPPS is not made up of just aerial or collection firms, but firms in the broad spectrum of geospatial activities, including LBS, applications, and value-added services that MAPPS strongly urges for all firms to individually comment to the FTC and Commerce Department.  

Again, MAPPS is working with the National Geospatial Advisory Committee (NGAC) and the Coalition of Geospatial Organizations (COGO) to each send comments on these regulations.

Call to Action: "Privacy" Regulations Threaten Geospatial Profession

Practitioners in the surveying, mapping and geospatial community should act on an urgent issue that will have a particularly adverse impact on business.

There are various efforts underway in the federal government to create new "privacy" protections for citizens. This applies to the collection, storage and use of certain data about individuals, including their address. All use the term "precise geolocation data" and prevent any private firm from collection, storage and use of such data without the citizen's advance approval.  This is an impractical and impossible requirement for private geospatial firms.

While there has been some abuse of personal information by some firms in some sectors, such as phishing -- the process of attempting to acquire sensitive information such as usernames, passwords, on-line habits, e-purchases, credit card info, etc.  in an electronic communication, e.g. Internet - none has involved MAPPS members or the specific geospatial community.

However, these proposals are poorly written, do not define precise geolocation data, and have serious unintended consequences for industries and professions beyond those these Federal authorities are attempting to regulate.

The PowerPoint, which MAPPS Executive Director, John Palatiello, presented to the National Geospatial Advisory Committee (NGAC) on December 7, 2010, provides background on the issue.

On December 1, 2010, the Federal Trade Commission (FTC) staff issued a report on privacy. While the news media has focused on the proposed, voluntary "Do Not Track" program for web browsers (similar to the "Do Not Call" list for telemarketers), what has gone relatively unnoticed is the fact that the FTC is also proposing regulations and policies that will shut down the geospatial community. Please peruse the FTC news release and the full text of the FTC report. On page 61 it reads, "The Commission staff has supported affirmative express consent where companies collect sensitive information for online behavioral advertising and continues to believe that certain types of sensitive information warrant special protection, such as information about children, financial and medical information, and precise geolocation data. Thus, before any of this data is collected, used, or shared, staff believes that companies should seek affirmative express consent."


There are two major problems with this proposal.

1. This proposal (like legislation that was introduced but not acted upon by Congress), uses the very broad term "precise geolocation data", but does not define the term. This is very dangerous.
   
2. To require that any geospatial firm to get "affirmative express consent" from every citizen about whom precise geolocation data is to be collected is impractical to the point of being impossible. This is not just data about an individual, but any "precise geolocation data". This would require every citizen to be contacted and approval obtained before parcel data is collected, or imagery, or elevation data, or any other geolocation data.

Public comments on this proposal are due January 31, 2011. I respectfully urge you to submit comments. Here are points you may wish to make. Here's how to submit comments.
 
More recently, on December 16, 2010, the U.S. Commerce Department issued a report, Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework. While this report is more focused on the internet, it includes "Recommendation #10: The Administration should review the Electronic Communications Privacy Act (ECPA), with a view to addressing privacy protection in cloud computing and location-based services" (p63) "we seek further comment and data from the public concerning ECPA's effects on the adoption of cloud computing and location-based services" (p65), "The social importance and economic value of recent digital communications innovations and new types of information, such as geolocation data collected from cell phones and content (text, voice, and video) stored in cloud computing systems, cannot be overstated" (p65) and The Task Force also seeks input on whether the current legal protections for transactional information and location information raise questions about what commercial data privacy expectations are reasonable and whether additional protections should be mandated by law. The Task Force also invites comments that discuss whether privacy protections for access to location information need clarification in order to facilitate the development, deployment and widespread adoption of new location-based services (p67)."

Here is the Commerce Department's Press Release: Commerce Department Unveils Policy Framework for Protecting Consumer Privacy Online While Supporting Innovation. Please note that comments to the Commerce Department are due January 28. Submit comments to privacynoi2010@ntia.doc.gov.

If you have any questions, please contact John "JB" Byrd, MAPPS Government Affairs Manager, jbyrd@mapps.org or (703) 787-6996.

I respectfully urge you to submit comments to both the FTC, by January 31 and the Commerce Department, by January 28.

Finally, MAPPS is collecting examples of the activities and applications these proposals would prohibit. Please provide examples in the Comments section below.

More information will be provided, including the MAPPS Comments to both the FTC and Commerce Department, as they become available.