Keeping track of mobile users? Device tracking laws are still in flux

Location services can be valuable to users, but it's not always acceptable -- or legal -- for employers to track users' devices and whereabouts.

Device tracking and location services can be incredibly useful for employers and employees, but some workers aren't

on board with being traced. Plus, laws surrounding device tracking and how that information can be used have yet to firm up.

Wireless networks depend on location information for traffic management, load balancing and other system-level functions.

It might seem like there's little downside to tracking a mobile device. Global Positioning System (GPS) technology, location-based services, Wi-Fi and cellular networks are already part of everyday life for most people. Presence, location and tracking capabilities come with real benefits for individual and device security, as well. For example, anyone requiring immediate medical or other emergency attention could use a "panic button" function that includes automatic location identification: E-911 services on cellular networks already do this. Event attendees can get directions to specific points of interest based on their current locations. Marketers can inform prospective customers of special sales, issue virtual coupons and use other tools to bring in retail traffic.

Almost everyone benefits from wireless location and tracking technologies at one time or another, but some users don't like having their location known and available unless they have explicitly enabled this function on their devices and apps. Mobile operating systems allow users to turn off location services, but that action usually comes with a warning regarding the features that won't work as well once location services are disabled.

Device tracking is especially a challenge for nongovernmental entities, and it comes from the legal domain: Under what circumstances can one party locate and track another?

Read -- and write -- the fine print

In general, wireless carriers and operators specify what they can and cannot do with users' location information in the fine print of a subscriber agreement. Because of the federal mandate for E-911 services -- which includes the caller's location when he or she dials 911 -- it is not possible to completely turn off location services. Wireless networks by their very nature also depend on location information for traffic management, load balancing and other system-level functions. This data can be made available to law-enforcement professionals under the requirements and provisions of the Communications Assistance for Law Enforcement Act.

This presents a few big problems: Can an employer track an employee? Can a provider of value-added services track one of its users? How can this information be used, and can it be sold to a third party?

The answers fall primarily in the domain of contract law or, in this case, the agreements between those doing the tracking and those being tracked. But the laws vary widely by country, and some nations enforce severe restrictions on how location data can be used. The terms of union contracts may also apply should an employer wish to track an individual driving a company vehicle, or even a private one on company business, for example.

With so much at stake and still outside settled law, take these tips into account if you're looking for guidance in making immediate decisions about device tracking:

  • Get legal advice before putting any device-tracking capabilities in place on users' mobile devices, and make sure that such advice is considered across local, state, national and industry-specific regulations.
  • Make sure that the nature of all tracking functions are carefully spelled out in customer, subscriber, employee and related agreements. Include the circumstances when users' devices may be tracked and how the information gathered will be used. The documents where such terms are outlined will also require regular review as tracking laws evolve.
  • Allow end users to opt out of being tracked if they desire. You can highlight which features or benefits the user will lose from such a decision, but respect those being tracked to build long-term trust.

With surveillance cameras everywhere today, automatic toll-collection systems tracking our driving habits, and our phones in constant touch with GPS, Wi-Fi location and tracking services, it seems likely that many people will eventually get used to having someone else pin down their location. In the meantime, however, it's best to tread legally, lightly and respectfully.

This was first published in March 2014

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