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Is iPhone data collection legal?

Musing on the IOS / Android / Windows Phone debate

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According to Gizmodo (and many others), it’s “no big” deal that Google, Microsoft and Apple are collecting location data from mobile devices.

Its reasoning is that although all three companies’ mobile device operating systems – IOS, Android and Windows Phone – collect both GPS coordinates and WiFi base station data, and although this information is returned to the respective vendors, the data is anonymized and we should all “stop worrying and love the bomb”.

I have several issues with this.

The first is that the Sony PSN hack has taught us that information can be stolen even from very large corporations. If someone found how to invade (say) an Apple data centre and grab data before it’s anonymized, then they have the data.

The second is that the recording of WiFi hotspot data, without the hotspot owner’s consent, isn’t necessarily legal under privacy regimes other than those that apply in America. Google’s StreetView program has led to it submitting to privacy audits in Australia; just why it’s okay to undertake similar data collection using other peoples’ devices is a subtlety that escapes me.

The third is that regardless of the vendors’ intent – which we cannot know beyond the public statements drafted by their lawyers and redrafted by their marketing departments – the act of collecting the data and returning it to home base is of questionable legality in Australia.

I don’t present this as legal fact – in fact, I will welcome correction. I’m making this contribution to the debate because I believe that there are deeper issues at stake than a simple “don’t worry, we’ll play nice with your data”. And it’s not the Privacy Act that matters – it’s the Telecommunications Act.

Location-based services and the Telecommunications Act

I would like to start with what the Act has to say about location-based services.

Section 291A of the Act considers location-based services in the light of an industry in which services are provided by carriers.

As a result, the Act allows the passing of location data – but under tightly prescribed circumstances.

The information that can be passed for providing location-based services:

• Can only relate to the phone number of a user;

• Can only be disclosed to a carrier or carriage service provider; and

• Can only be disclosed for the purpose of providing the location based service.

There’s certainly no shield in Section 291A for Apple, Android device makers, or Windows Phone device makers. They’re collecting more than the phone number of the user, and they’re not carriers or carriage service providers.

The belief that it’s okay for (say) user coordinates to be sent to Apple, Google or Microsoft because they supplied the phone does not seem to be supported by Section 291A of the Telecommunications Act.

Unlike breaches of the Privacy Act, which are often treated as trivial by companies and often considered trivial by service spruikers, breaches of the Telecommunications Act’s data-passing provisions are non-trivial. The maximum penalty for an individual is two years’ jail.

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