It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.

Cell Phone Privacy

-- By AustinLeach - 01 Jan 2012 (still a work in progress)

Introduction

Cell phone companies use tracking software to locate consumers and monitor their phone-related activities. This private information is sold or given to third parties under the false premise that it enables “better service.” In most circumstances however, the consumer is unaware that his personal information is being tracked, recorded, and traded. Is there a way for the law to better protect these digital invasions of privacy?

Cell Tracking and Usage Monitoring

During the Black Friday holiday shopping weekend this year, two US malls considered using FootPath? Technology to tracks consumers’ movements by monitoring their cell phones, according to a CNN.com Money report. The malls’ joint management company claimed it would not look at individual shoppers, and that it would anonymously mine the data to better understand shopping patterns. The system did not take pictures and did not collect data on what shoppers purchase. Users had the option to “opt-out” of the program by turning off their phones upon coming within range of the mall. Although the malls eventually decided not to proceed with the program, other large retail chains such as JC Penney are considering using the technology, and companies in Europe have already implemented similar programs.

Cell phone service providers also use software that tracks a user’s activities, including battery life, applications, and text messages. According to a recent Wired.com article, an independent Android developer discovered such software developed by Carrier IQ on Android phones. Carrier IQ’s marketing manager stated the software was for understanding the “mobile-user experience,” where calls are dropped, why applications crash, and how many texts fail. However, the software, known as a rootkit, operates like a Trojan that keeps itself and other programs hidden from detection. Rootkits keep certain files hidden from display, can control the use of licensed or copyrighted material, and can prevent the user from removing the hidden enforcement program. Additionally, Carrier IQ’s marketing manager confessed that the software allowed Carrier IQ to read user’s text messages if it wanted.

Protections?

What are some protections—in the law or otherwise—for these digital invasions of privacy?

State eavesdropping laws can be tweaked to prohibit phone companies from using rootkit software on cell phones. Under New York Penal Law §250.05, a person is guilty of eavesdropping when he unlawfully engages in mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication. However, under §250.00, telephone companies are exempted from the definitions of “wiretapping” and “telephonic communication” when they engage in such activity “for a legitimate business purpose.” Legislation that did not provide exemptions for phone companies would, in theory, prohibit eavesdropping through rootkit software.

Another way to provide better privacy protections would be a law requiring both disclosure and an opt-in regime for cell companies that sought to monitor cell usage or provide users’ locations to third parties. Current cell phone agreements are lengthy boilerplate documents with terms and conditions that the average person does not read. Clauses, such as AT&T’s location-based services clause, state that the company reserves the right to use the consumer’s location, usage, and performance information to provide the consumer with its services, and to maintain and improve the network and the quality of the wireless experience. If not completely barred from monitoring cell usage or providing locations to third parties, companies should be forced to clearly disclose what and how such tracking information would be used. Additionally, phone companies should be required to obtain permission to collect and use the data. This can be accomplished in one step by programming on a cell phone that, upon the very first system startup after purchase, tells the user what information is collected (location, text, usage, etc.) and asking him if he wants his information sent to the phone company. While this does not prevent tracking by the phone companies as some users will opt in, it at least gives them the option.

Conclusion

---

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, AustinLeach
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.