Al Franken (left) and Richard Blumenthal have introduced a geolocation privacy bill. | AP Photos Smartphone privacy bill introduced

Smartphone giants such as Apple and Google — and the many third-party developers who create apps for the iPhone and Android — would have to request access before collecting and sharing a user's location under a new bill by Sens. Al Franken and Richard Blumenthal.

The Location Privacy Protection Act of 2011, unveiled Wednesday, would mandate those tech heavyweights and small-time developers for the first time to disclose to smartphone owners when they are tracking their whereabouts — or else risk hefty penalties.


The bill would also require app developers that serve location data on more than 5,000 mobile devices to safeguard that information, inform consumers when they ask what data is being collected and delete the data if consumers request it.

"Geolocation technology gives us incredible benefits, but the same information that allows emergency responders to locate us when we're in trouble is not necessarily information all of us want to share with the rest of the world," Franken said in a statement.

"This legislation would give people the right to know what geolocation data is being collected about them and ensure they give their consent before it’s shared with others," he said.

The new effort by Franken (D-Minn.) and Blumenthal (D-Conn.) arrives in response to growing alarm on Capitol Hill about smartphone and app privacy.

Triggering the brouhaha was a report this year that the operating software in Apple's iPhone and iPad, called iOS 4, tracked users' locations without their knowledge.

Apple later said the software logs nearby cell towers and Wi-Fi hotspots are meant to improve service, a claim that seemed to assuage few in Congress.

Since then, lawmakers have cast a far more skeptical eye at the entire industry's efforts to protect consumers. Leading the pack has been Franken, the chairman of the new privacy subcommittee under the full Senate Judiciary Committee's umbrella.

Franken has already held a hearing on mobile phone privacy and, along with Blumenthal, signaled an interest in legislating.

The duo's new bill would create the country's first mobile phone privacy regime.

“Any company that may obtain a customer's information from his or her smartphone" would be required to get a customer's "express consent before collecting his or her location data," according to a summary of the bill.

Apps developers and smartphone manufacturers would have to obtain permission to share that data, too.

Companies that serve location data for more than 5,000 users would be subject to additional rules. For example, they would have to take "reasonable steps to protect that information from reasonably foreseeable threats," and inform or delete the data at customers' request.

And companies that ran astray of the law could face a crackdown by the Department of Justice or civil lawsuits by state attorneys general.

The entire legislation itself is premised on what the members called key "loopholes" in the Electronic Communications Privacy Act, which typically governs the means by which law enforcement can access consumers' digital information during investigations.

According to stakeholders, ECPA has provisions on how location data can be shared. But part of the law exempts commercial entities, so it doesn't explicitly address how smartphones and apps use and share geolocation information.

Franken's office was not available to comment further on the loophole in ECPA, a law that members have recently eyed for revision.

Some tech stakeholders, however, told POLITICO in the run-up to the bill's release this week that the inclusion of ECPA and the Justice Department is partly a tactical maneuver by Franken.

As one knowledgeable source pointed out, law enforcement issues are always the purview of the Senate Judiciary Committee, under which Franken's subcommittee falls.

Otherwise, the bill would typically be the domain of the Senate Commerce Committee, which has sparred recently with Judiciary over which panel should lead the way with online privacy reform.

Jurisdiction aside, Franken’s bill already has the support of top privacy advocates, including the Center for Democracy and Technology and Consumers Union.

But the bill is not without critics.

"The glaring flaw in Sen. Franken's bill is that it gives plaintiff's attorneys the incentive to sue America's leading tech companies for millions of dollars over mere technical violations involving geolocation," said Steve DelBianco, executive director of NetChoice.

"No need for attorneys to chase ambulances anymore. The local high school bus is full of kids with smartphones — many whose geolocation is shared with their parents," he said. “This can't be what Sen. Franken had in mind."

Franken and Blumenthal's bill arrives the same day that two other lawmakers — Sen. Ron Wyden (D-Ore.) and Rep. Jason Chaffetz (R-Utah) — unveiled their own mobile phone privacy legislation. That effort would apply mostly to how law enforcement can access geolocation data.

Michelle Quinn contributed to this report.



This article first appeared on POLITICO Pro at 3:54 p.m. on June 15, 2011.