Off the Grid: Pinpointing Location-Based Technologies and the Law
Total Page:16
File Type:pdf, Size:1020Kb
Off the Grid: Pinpointing Location-based Technologies and the Law Written By: Geoffrey White, Barrister & Solicitor External Counsel The Public Interest Advocacy Centre 1204 - ONE Nicholas St. Ottawa, Ontario K1N 7B7 June 2015 Copyright 2015 PIAC Contents may not be commercially reproduced. Any other reproduction with acknowledgment is encouraged. The Public Interest Advocacy Centre (PIAC) Suite 1204 ONE Nicholas Street Ottawa, ON K1N 7B7 Tel: (613) 562-4002 Fax: (613) 562-0007 E-mail: [email protected] Website: www.piac.ca Canadian Cataloguing and Publication Data ISBN 978-1-927707-03-6 Off the Grid? Pinpointing Location-Based Technologies and the Law Off the Grid? Pinpointing Location-Based Technologies and the Law Page 2 of 109 Acknowledgement Financial support from Industry Canada to conduct the research on which this report is based is gratefully acknowledged. The views expressed in this report are not necessarily those of Industry Canada or of the Government of Canada. The author would also like to thank Kent Sebastian, PIAC Student-at-Law 2014-15, Sarah Mavula, PIAC Summer Student 2014, and Jonathan Bishop, PIAC’s Research & Parliamentary Affairs Analyst, for their research and contributions. Any mistakes are solely the author’s. Off the Grid? Pinpointing Location-Based Technologies and the Law Page 3 of 109 Executive Summary Knowledge of the whereabouts of a person, and of a person’s movement patterns, can be very valuable, from a marketing perspective. Indeed, the scale and scope of the business opportunities associated with so-called location-based behavioural marketing and location- based services (collectively, location-based technologies) have been well-documented in the business literature. The opportunities for businesses to gain even more insights into consumer behaviour based on consumers’ whereabouts are said to be unprecedented given (i) the rapid growth in adoption and use by Canadians of smartphones and other mobile computing or “smart” devices with embedded global positing system (GPS) chips, such as tablets; (ii) the rapid growth in adoption by businesses of Radio Frequency Identification (RFID) technology; and (iii) the increasing incorporation of location-based data into an increasing number of applications (apps) in use. But are there issues in knowing where consumers are constantly? Will a balance be struck between the ability of retailers and others to reach consumers, via location-based advertising, and consumers' desire to protect our privacy and keep the information collected about them secure? Are consumers sufficiently informed of how their location-based data is being used? Are their telecommunications service providers playing by the rules in terms of what information they are allowed to collect? Ultimately, the main research questions that this report aims to address are: Does the current legal and regulatory regime, which draws on elements of privacy law and telecommunications law, reflect broader social norms in respect of privacy? Do the legal, regulatory and self-regulatory approaches sufficiently protect consumers from the over-collection, misuse and inappropriate disclosure of their location-based personal information collected through mobile computing devices? Through a detailed literature review and comparative analysis of other jurisdictions, a national telephone survey of consumer attitudes, and consultation with stakeholders and leading academics, the Public Interest Advocacy Centre (PIAC) has assessed the suitability of the legal and regulatory framework applicable to location-based technologies in light of Canadians' attitudes and growing privacy concerns. Do the existing rules capture the types of location- based technology initiatives that are emerging, and are consumers sufficiently informed of when and how their location-based data is being used? Or are these initiatives “off the grid” – operating contrary to broader social norms of Canadian society? This report outlines strong consumer concern over the collection and use of personal information, wide variation in collection and use practices by businesses, and a general lack of transparency of such practices. Therefore, it is essential that consumers have an effective legal framework to protect them from the rapid developments in information collection technology, especially those capturing location. This report finds that location is an increasingly sought, increasingly tracked piece of information that can reveal much about individuals, and that Canadians are concerned about location-based Off the Grid? Pinpointing Location-Based Technologies and the Law Page 4 of 109 tracking. This report concludes that location about individuals should be considered highly sensitive personal information and should warrant strict legal protection. This report concludes that the contextual, principles-based approach to privacy in the federal privacy law (the Personal Information and Protection of Electronic Documents Act or “PIPEDA”) may not sufficiently protect Canadians from having information about their location over-collected (or surreptitiously collected), misused, and inappropriately disclosed, particularly by third parties. Based on these conclusions, this report recommends that short of legislative reform, the federal privacy ombudsperson, the Office of the Privacy Commissioner of Canada (OPC), issue an Interpretation Bulletin addressing whether location information is personal information, and should conduct research into consumer awareness and expectations regarding location-based information collection use and disclosure. Finally, Canada’s telecommunications regulator, the Canadian Radio-television and Telecommunications Commission (CRTC), should initiate a fact- finding process into the tracking of location by telecommunications service providers, and their direct and indirect use of the collected location-based information generated from the use of their networks. Off the Grid? Pinpointing Location-Based Technologies and the Law Page 5 of 109 Table of Contents Acknowledgement ...................................................................................................................... 3 Executive Summary ................................................................................................................... 4 Glossary..................................................................................................................................... 8 Chapter 1 – Introduction ............................................................................................................. 9 The new rules of marketing: location, location, and… location ............................................... 9 Growing privacy concerns .....................................................................................................11 The issue: Do the current privacy rules adequately address location? ..................................14 Methodology .........................................................................................................................14 Why is this important? ...........................................................................................................15 Report structure ....................................................................................................................16 Chapter 2 – Location-based technologies: an overview ............................................................17 What is location? ...................................................................................................................17 What are Location-based Technologies? ..............................................................................18 Why is location information collected? ...................................................................................21 Technical reasons for collecting location information .........................................................21 Public safety reasons for collecting location information ....................................................21 Commercial reasons for collecting location information .....................................................22 How is location information collected?...................................................................................25 Smartphone apps ..............................................................................................................27 Sensors .............................................................................................................................29 Examples of location-based technologies .............................................................................33 Apple iOS location services ...............................................................................................33 Turnstyle Solutions ............................................................................................................34 Via Informatics’s “LocationGenius” ....................................................................................38 iBeacon technology ...........................................................................................................39 Verizon Wireless Smart Rewards ......................................................................................42 Canadian telecommunications service providers ...............................................................43 Chapter 3 – Privacy concerns and consumer attitudes towards location-based technologies ....48 Risks and concerns with location-based information