Scott Hotes: May 2010 Archives

"One who does not wish to disclose his movements to the government need not use a cellular telephone."
  --  DOJ under G.W. Bush

Recently, the question of using location derived from cellular networks for the purposes of law enforcement has come up in the courts. The DOJ under President Obama has appealed to a Philadelphia court an earlier decision that access to location requires a search warrant based on probable cause. In particular, the brief put up by the Obama DOJ states that as part of using a cell phone, the user assumes the risk that location will be accessible by the government.

The argument the government is making is essentially this: it is reasonable to believe that the user of cellular services understands that the service provider must have some knowledge of the whereabouts of the user in order to provide the service, and thus by participating in this service, they are in effect providing information about their whereabouts to the service provider, and in turn to the government.

OK, there are a number of obvious concerns I have with this line of argument. Here is my shortlist:

1. It's not at all clear why sharing location information with my service provider would imply a willingness to share it with the government.
   
   
2. In order to provide cellular service, the service provider also has access to a variety of other information, including who the user communicates with, and the information communicated. They certainly need to know the former, and for practical purposes have access to the latter. Does this then imply that there is no reasonable expectation of privacy regarding this information?

In short, I believe that instead of continuing to fight for these draconian measures initiated by the Bush administration, the Obama administration would be well served to move in favor of the Fourth Ammendment here and drop this appeal. It would not be a stretch to consider this issue in the context of Obama's promise while running for office to eliminate warrantless wiretaps.

A few weeks ago, Apple unveiled plans for it's upcoming release of the iPhone operating system. As part of these announcements there were some positive steps relating to location privacy. In particular, see this review in the NY Times.

Scott Forstall, Apple Sr. VP of iPhone Software, referred to "fine-grained settings" such as managing the list of applications with access to location and end-user notification settings.

This is an important step forward from the current smartphone and mobile web model where each application (or mobile web site) is silo'd with it's own permission settings.

There is no doubt that this is a complex issue. Although many arguments have been made as to why the FCC should not reclassify broadband under Title II, it now appears that this may be the only truly viable option. Laurance Lessig lays out the details in this recent presentation: