Original URL: http://www.theregister.co.uk/2011/05/02/device_data_collection/

Is iPhone data collection legal?

Musing on the IOS / Android / Windows Phone debate

By Richard Chirgwin

Posted in Law, 2nd May 2011 00:51 GMT

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.

Other provisions of the Act

Let’s now turn to Part 276 of the Act.

Rather than recite the act, I’ll summarize:

• It is an offence to disclose or use any information relating to the content of a communication, services supplied, or any user’s personal information, if;

• That information has come into your possession as a carrier, service provider, contractor, or employee of any of these.

In my mind – with the usual disclaimer that I am not a lawyer – the risk to device makers is in the definition of telecommunications contractors. According to the Act, a contractor is a company that performs “services for or on behalf of” telecommunications carriers.

Even when a phone was a dumb, passive device, if a supplier was aware that a particular phone number was associated with a particular person (for example, because it installed the phone and had to check the line), it couldn’t divulge that information (except in accordance with the Act).

Today, the relationship between carrier and device builder is more extensive and enduring: there’s no doubt that the device makers maintain an ongoing relationship with the carriers that sell their phones. I argue that they fall within the definition of “contractor” in the Act.

And if we return to Part 276 of the Act, it doesn’t matter that the device maker doesn’t disclose your personal information. The use of the information is also covered. The contractor delivering my phone (on behalf of the carrier) could not then use my information to try and sell me something else.

In awe of their own cleverness, the device makers are straying into a different legal grey area.

If the device makers are supplying services that fit the definition of the Telecommunications Act’s “location-dependent services”, then what other obligations does this impose on them?

If they’re providing something that’s a telecommunications service under the Act, then at the very least, they need to be carriage service providers, members of the TIO – and willing to accept the legal obligations that apply.

Who gives consent?

Sections 289 and 290 of the Act does create an exemption. It says that Section 276 does not prohibit disclosure if the subject of the information has given their explicit or implicit consent.

However, I don’t think the kind of consent that you get from an EULA is necessarily what the legislators had in mind. There’s a difference between “may I do this” and “you must to click OK to start using the product, but you can opt-out later if you remember to do so and can work out how”.

The specific wording of the act is that the owner of the information “is reasonably likely to have been made aware that information … is usually disclosed, or used, as the case requires, in the circumstances concerned.”

The EULA is a grey area. Perhaps a court would agree that the “I Agree” button covers this case, perhaps not.

But what about third parties? Here’s a case:

1. Your iPhone collects my WiFi location (which Apple states takes place).

2. My WiFi location is attached to a carriage service.

3. The geodata associated with my WiFi device is attached to an address.

My point here is that regardless of whether this represents an invasion of privacy, it potentially transgresses the Telecommunications Act. As the WiFi owner and carriage service customer, I have most certainly not consented to Apple’s collection, use or disclosure of information about my carriage services.

Apple, however, is doing all three: it’s collecting the data through iPhones, it’s using that data to geolocate the iPhones, and it’s disclosing that data to the iPhone users.

I’m not saying definitely that Apple, Google or Microsoft are breaking the law. But in their cavalier arrogance, these three companies – and, I suppose, others – have sailed into a legal grey area.

Neither they, nor their army of unpaid defenders, can excuse their behaviour by saying “it’s no big deal”. ®