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November 27, 2012

Mobile Devices Reshape Privacy and Identity Protection Enforcement


As more Americans use their mobile devices to share information like credit card numbers and home addresses, there is a growing concern that privacy protections must evolve as well, including increasing transparency for the use of consumers’ personal data and developing a code of conduct for businesses.

At an _ program called the Nuts and Bolts of Privacy and Identity Protection, legal experts explained how this goal can be accomplished and how skyrocketing mobile phone and tablet use have forced consumers, businesses and the government to reconsider what is appropriate and safe.

The program, sponsored by the ABA Young Lawyers Division Antitrust Law Committee and the ABA Section of Antitrust Privacy and Information Security Committee, addressed the privacy and security implications of the information economy — collecting, processing, storing and using personal information — and how corporations can use consumer information and protect that information from new risks and vulnerabilities.

A Federal Trade Commission lawyer at the program said her agency has re-examined its approach to privacy to ensure that businesses that use consumer data also provide more information to consumers on how they use it.

“Over the years, the agency’s goal in the privacy arena has remained constant, and that is to protect consumers’ personal information and ensure that they have the confidence to take advantage of the benefits offered by new technology in an ever-changing marketplace,” said Laura VanDruff, a lawyer at the FTC’s Division of Privacy and Identity Protection.

We are now moving to a new era where both consumers and companies that collect data are now more sophisticated, according to Kristin McPartland, an associate at Kelley Drye and expert on consumer protection matters.

She said consumer complaints are driven by consumer awareness of the pitfalls and benefits of sharing their information. McPartland also explained that there is a generational divide among consumers on views about privacy. Older Americans expect a great deal of privacy when they share information even in a limited way, while younger people have a more open-minded view about privacy and are more willing to share their information.

Kelly DeMarchis, a lawyer in the regulatory affairs practice group at the law firm Venable in Washington, D.C., believes mobile devices are transforming how we think of privacy.

“There is a growing sense that a mobile device, unlike any other kind of computing device that has come before, is becoming in some ways a proxy for the person himself or herself,”  DeMarchis said. “The type of data that mobile devices are capable of collecting and sharing on an instantaneous basis — GPS data, of course, is a primary example — is recognized as a type of data for which high sensitivity and protection is generally required.”

As part of the FTC’s re-examination of privacy in March 2012, the commission issued a framework that outlined best practices for companies that collect and use consumer data. The recommendations include: promoting privacy by design, simplifying choice and increasing transparency.

The White House has developed a “privacy blueprint” to guide changes in policy. The administration has requested that the National Telecommunications and Information Administration hold stakeholder meetings to examine mobile application transparency and to develop a code of conduct for companies handling personal data.

Members of Congress have introduced bills on geolocation privacy — to protect consumers from location information broadcasted by their smartphones — that would require either prior consent or expressed authorization to collect, use and share location data from mobile devices.

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