Bergen County Real Estate

Enhanced 911, usually called "E911," is technology that offers an abundance of solutions for safety and security problems. Prompted by federal law, cellphone companies must provide accurate technology to their handsets so that callers' locations can be identified in emergencies - whether through use of global positioning satellite (GPS) or other methodologies. The technology promises that emergency personnel can locate callers from roadside accidents, victims of crime, lost campers, children calling home, first responders, and others, simply by tracking the signal from the caller's mobile phone. Once in place, the technology will also give service providers the opportunity to use cellphone location abilities for commercial purposes.

These technological advances do not come without problems, the first of which has been the cost of rolling out the technology, both for carriers and others. A second issue has received less attention initially, but may become more prominent as the public comes to understand the technology: the problem of E911 and individual privacy.

The Public and E911 Privacy Issues
Privacy is as much a public perception or public relations problem as a legal one. Put another way, the consumer's perception of privacy is important not only to the consumer, but also to the sellers of mobile phone technology and services, and governments trying to use that technology for emergency response systems. It's important that individuals using cellphones do not feel that their privacy is being unreasonably invaded, otherwise they will not use the technology.

From that point of view, it's hard to see that there is a privacy problem yet. It is a safe bet that most of the general public could not yet identify what E911 is. If they have thought about location tracking at all, members of the public might assume that wireless companies or the government can already easily track their locations when they use a cellphone. At least that's the way it works in the movies. And many people would assume that there's some chance their calls can be listened to, a more egregious privacy problem than location tracking.

Despite these already existing privacy perceptions, people continue to expand their use of wireless technologies. They're willing to trade some loss of privacy for the advantages that the technologies offer. My unscientific judgment is that so far there is no great hew and cry about privacy and E911.

But people are gradually coming to learn more about the general topic of locational technology, if not E911 in particular. Advertising of GPS systems has increased. At the same time, the media is reporting how people can be tracked and about the privacy issues associated with location-based technology.

The fact that automatic toll collection systems can identify the movement of individuals is good for periodic newspaper articles. The press has revealed the arrest of a Merced, California man, for hit-and-run driving, because of the notification to OnStar upon the deployment of his vehicle's airbag at the time of the accident. A Kenosha, Wisconsin woman reported that her ex-boyfriend had installed a GPS device in her car and was stalking her. Not long ago the media widely discussed a lawsuit resulting from a small rental car company in Connecticut charging a customer extra because a GPS device determined that he was speeding. And despite their potential safety benefits, red light camera technologies have drawn heavy fire from a small but vociferous group that challenges them vigorously. These technologies have been around far longer than E911, but we're only beginning to see privacy complaints surface, so it may be some time before widespread concerns about E911 and privacy arise.

The Attention of Legislators and Regulators
Federal legislators and regulators are already paying attention to E911 privacy issues. In 1999 Congress added Section 222 to the Communications Act of 1934, providing for the privacy of information in the wireless context. Section 222(a) provides in part: "Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to ... customers... ." Although denying a petition brought by the Cellular Telecommunications and Internet Association (CTIA) seeking rulemaking on the subject, the Federal Communications Commission (FCC) stated in a July 24, 2002 Order: "As recognized by (Section 222), the privacy of information concerning consumers' location while using mobile wireless services is critically important." The FCC determined in the Order not to engage in rulemaking at that time because of the "still developing market for location-based services." The FCC remains interested in the issue.

Other bills in Congress have proposed to be more specific with E911 and privacy. State legislators and regulators are also looking into the issue. One example is SB 666, a California Senate bill dealing with the implementation of E911 in that state. Among other things, it calls for that state's Department of Consumer Affairs, Office of Privacy Protection, to convene a group of wireless providers, users, and privacy experts to consider the privacy implications of E911. Thus, whether or not there is an actual privacy problem, or even one perceived by consumers, both legislators and regulators are already acting as though location-identifying technology is a major privacy issue.

Section 222 of the Communications Act of 1934
Unlike many developing areas of location privacy, Congress has expressly legislated in the E911 area, in Section 222 of the Communications Act of 1934. The Section applies to every "telecommunications carrier," and therefore might not apply to competitors with similar services such as in-vehicle telematics devices. In a similar vein, in a February 19, 2003 FCC filing, the Intelligent Transportation Society of America has taken the position that the FCC may not have jurisdiction over certain types of telematics providers in the E911 arena.

In subsections (f) and (g), after first stating that as a general rule a customer will not be deemed to have given permission to use location-based information, Section 222 does give express permission to use such information for emergency services. There is little doubt that business and government can carry out the emergency service applications of E911 without fear of running afoul of the law.

Greater difficulty will arise if providers seek to use the location-tracking ability for commercial services. Section 222(f) plainly forbids one type of commercial use - the sale of information about a crash - so that those seeking to take advantage of an accident will not hound an accident victim. But there are other commercial services that could be sold that would not offend public policy and which the cellphone owner might find valuable.

Such a customer might wish to inquire about the location of the nearest restaurant, store, police station, or hospital, and the information could be transmitted to the telephone based upon location-based technology. Section 222 indicates that such uses can be proper.

For example, subsection (d) allows certain telemarketing services if initiated by the customer. Further, subsection (f) says that a customer's call location information cannot be used or disclosed "without the express prior authorization of the customer," which implies that it can be used if that authorization is obtained. The exact means of obtaining the consent may be a subject of dispute. Discussions of consent in this context often distinguish between "opt-in" and "opt-out" systems.

In the former, the person whose personal information is potentially going to be used will be told he or she must opt in for that to happen. In the latter, the individuals will be told the information will be used unless they choose to opt out. The term "express prior authorization" in Section 222(f) may eventually be determined to refer to an opt-in type of system. That seems to have been the view of the FCC in its July 2, 2002 Order, and one of the reasons the FCC felt it did not need to promulgate rules to clarify the situation further at that time.

In any event, providers will have to tread carefully within the confines of Section 222 as they seek to expand the use of locational tracking abilities beyond the emergency service arena. A group called the Wireless Location Industry Association (WLIA) promulgated a draft set of privacy standards for industry guidance. The privacy principle statements of other groups may be valuable as well. A service provider may be well advised to adopt a similar set of clear policies to live by, a usual recommendation of such sets of principles. There is, however, a downside to doing this - if the provider does not live up to its own policies, it may be making the case for the litigant who challenges the company's conduct.

Other Legal Issues
Privacy law, whether applied to E911 or any other topic, is a confused mixture of federal and state law, as well as law developed by judges in deciding individual cases. The United States Constitution does not provide outright for a right of privacy, but such provisions of the Constitution as the Fourth Amendment's protections against unreasonable search and seizure have led to a body of case law on the subject, most prominently in the criminal law context. Some of the Fourth Amendment cases do speak to a location-type issue.

For example, in one case the court found no right of privacy in motel records that revealed the whereabouts of one of the guests who was staying there. To date the courts have not enunciated any general right of location privacy in the Fourth Amendment context. However, Fourth Amendment cases do not necessarily decide the issue in noncriminal contexts such as commercial uses of E911, where the policy issues are quite different. For example, in the commercial context, there is normally a consumer who has chosen to use a particular service, and will be argued to have consented to a loss of privacy in doing so.

Other privacy law development comes either at the state level or in the courts through common law development of privacy issues, such as the tort of "invasion of privacy." A typical characterization is contained in Hill vs. National Collegiate Athletic Association. In that case the California Supreme Court took occasion to survey the development of the tort of invasion of privacy as a legal concept, and summarized that under the California Constitution it consisted of the following elements: "(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." However, the Court also said "Privacy concerns are not absolute; they must be balanced against other important interests." While that is California's statement of the test, it is typical of the myriad of statements one can find in the case reports throughout the country.

This test would leave it to the facts of each case to determine whether there has been an invasion of privacy, balancing various public interests. But again, the run of cases does not provide a lot of encouragement for one seeking to find a general right of location privacy. For example, in Munson vs. Milwaukee Board of School Directors, there was no right of privacy afforded someone whose commuter pattern had been tracked to see if he was a resident of the school district that employed him.

Cellphone carriers probably should have little to fear on this front in the E911 context. If E911 location information is used and released only for its federally mandated emergency purpose, then there is little chance of liability, in view of what would be the overriding federal law in Section 222. Even in the commercial context, if state law is deemed to apply, carriers should be reasonably protected if they obtain the intelligent consent of customers before using the data, because a consumer giving such consent could not be said to have had a reasonable expectation of privacy.

Privacy problems might not be limited to consent issues. If a carrier fails to reasonably protect the security or integrity of the information, and that results in a loss of privacy by a customer, then possibly an invasion of privacy could be alleged. Holders of information must ensure in contract that other parties to whom they transfer the information legally will not use it improperly.

The Bottom Line
The law of privacy is complex, but the careful service provider should be able to navigate the rules with respect to E911. Privacy begins less as a legal problem, and more as a public relations problem. As knowledge of location-based technologies like E911 grows, the public may focus greater attention on the privacy issues than now exists. The federal government has clearly provided the framework to roll out the emergency-based services contemplated by enhanced 911.

The law is less clear about what businesses must do if they wish to expand the location-based abilities of cellphones beyond those emergency applications into the commercial arena, although Section 222 does open the door for reasonable consent-based commercial applications. Reasonable applications similarly ought to be able to operate without running afoul of more general privacy laws.

SIDEBAR

What One Company Is Doing While the E911 Debate Rages On

WBT Interviews Jeffrey Beri, chairman and co-founder of Peace of Mind at Light Speed, about compelling applications that could speed things along

The location-based industry, people are saying, is burgeoning like the Wild West: wireless platforms and applications are scattered about the vista like homesteading settlers stampeding toward the horizon. Companies claim that their wireless products offer a range of services as wide and varied as herds of buffalo that once covered the open prairies, so WBT decided to visit with one of them - Peace of Mind at Light Speed, a Westport, Connecticut-based company that develops location-based and location-aware software and products - to learn firsthand about this fast-moving segment of the wireless space.

As the wireless industry steadily evolves, striking parallels are arising between the transition from the horse-drawn wagon to the horseless carriage and car phones leaving the confines of automobiles to become truly mobile.

Location-based technology and applications comprise a wide-open and sparsely populated territory like that of the Wild West. The industry is diverse, and hands over its young, tech-savvy junior executives to industry barons looking to capture a significant market share. However, as much as the location-based and location-aware offerings seem compelling to the consumer, the revenue streams are hardly overflowing their banks.

One man, Jeffrey Beri, chairman and co-founder of Peace of Mind at Light Speed (POMALS), believes that there are three principal reasons consumers haven't widely adopted location-based services (LBS) and location-aware services (LAS). "Carriers lack direction and focus," he says. "They don't drive the market or increase consumer interest, but rather focus on deriving revenue and maintaining dominant market share in a competitive industry."

There are, Beri continues, only limited LBS and LAS applications currently being developed. One reason, he explains, is the infancy of the industries - while deployment has also been slowed by the reluctance of developers to create applications. "This," Beri says, "is due to the high cost of development, time to market, and disconnects between developers, manufacturers, and carriers.

"In these times of heightened security consciousness," he adds, "consumer demographics for LBS and LAS products and services are in a state of flux. Companies need to be keenly aware of diverse demographics."

Beri gives an example: an LAS security application may be attractive to the business owner, but unattractive to the salespeople. Therefore, for the application to be successful in the marketplace, the developer must create a service that is compelling for the business owner to buy and for the salespeople to carry.

Carriers Must Do More
The carrier industry itself appears not to be driving consumer interest. It is content to focus all its energies on providing the highest quality service and bandwidth with an eye on the bottom line.

Yet LBS and LAS, in Beri's opinion, have huge potential to offer a number of unique benefits to carriers, which should be open to third-party development. "If developers of location-based and location-aware hardware and software were willing to take the risks associated with bringing new, exciting, and revolutionary applications and products to market," he says, "their success would generate revenue and increase market share for the carrier."

Aside from being compelling and offering differentiated services for their subscribers, LBS generate more network traffic than most other wireless applications because they are data-intensive and can increase voice traffic. Increased traffic means greater use of existing bandwidth, which translates to increased revenue for the carrier.

GPS Is the Way to Go!
The FCC's E911 mandate requires wireless carriers to be able to instantly determine a subscriber's location when they call emergency services (see "E911 and Privacy" in this issue). Various deadlines for the implementation of this technology have been put in place based in part on the technology solution adopted by each carrier.

As expected, most carriers missed the first critical deadline in October 2001. For instance, Verizon and Sprint both opted for handset-based E911 solutions, and were slated to start selling location-enabled handsets by October 1, 2001. By December 31, 2001, 25% of handsets sold were supposed to be E9ll ready, reaching 50% by the end of June 2002. Both carriers applied for and were granted short extensions: Verizon has committed to reaching the 25% mark by June 2003; Sprint said that 100% of all handsets sold would be location-enabled before its extension expires. Both face significant fines if they fail to meet these revised deadlines.

What, WBT asks Beri, is POMALS doing, while the E911 debate rages on among the carriers? "Challenging a market that the industry perceives as being bogged down and idling," he replies instantly.

"As chairman and co-founder of the company, I believe that the mobile medium is powerful, and capable of creating value through the delivery of LBS and LAS to mobile products such as the RIM BlackBerry and laptop computers. Unlike current fixed-line Internet applications, POMALS' mobile applications are targeted with the capability of being delivered anywhere at anytime and personalized to a particular customer's needs by location, vertical, or incident."

The mobile wireless business medium, Beri contends, will provide access to a larger market for products and services, particularly in the security, convenience, and productivity arenas. While carriers focus on the E911 issue, they are not able to drive the demand for mobile wireless business applications for security, convenience, enterprise solutions, and gaming.

"POMALS is picking up where the carriers are failing," he explains, "by delivering mobile location-based and location-aware applications that offer increased productivity, security, and convenience for users. Products that are powered by POMALS utilize existing wireless networks and locating technologies to interact with POMALS' proprietary software platform to deliver an easy-to-use suite of applications and services. Carriers would have a financial incentive to launch revenue-generating location-based services as soon as possible, which supports the business logic behind POMALS and the need for its compelling location-based applications."

The value of LBS and LAS to the consumer is that the services extend the users' senses. Beri points out how this works in the case of his company's product: "Using a RIM BlackBerry, PDA, or POMALS ActiveAccessory and standing on any street corner in America," he says, "POMALS can help users extend the Internet to their location by showing you the whereabouts of your business associates or loved ones; it can tell you what's playing at the nearest theater, get you to the board meeting, or show you the easiest route to the closest coffee shop."

POMALS, in summary, seeks to partner with the best-of-breed hardware and application developers in order to maximize the realities that exist in the marketplace today. One example: the company's first strategic partnership was with Research in Motion, Ltd. (RIM). Utilizing their wireless connectivity, POMALS developed enterprise applications targeted at specific vertical industries by inventing the sleeve for the BlackBerry 957. "The next step," Beri says proudly, "is to develop location-based applications and enterprise solutions for BlackBerry wireless handhelds. We also plan to create solutions for Java-based BlackBerry handhelds."

Going Vertical
All of these software applications can be targeted at specific vertical applications. Successful companies have long known that a well-trained, highly motivated, and efficiently connected mobile workforce is critical to their continued growth and success. Such companies realize that to stay ahead of the competition, they need to replace traditional paper, telephone-based, and PC systems with mobile wireless solutions that enable employees to access information anywhere.

It's for this reason that POMALS is currently focusing on the real estate industry - an industry comprised of an information-intensive, mobile workforce. Utilizing a location-based sleeve "powered by POMALS," Beri says, "real estate agencies will be able to link to a comprehensive database of property information that will give their agents the competitive advantage of having all property information accessible while in the field, including up-to-the-minute listings for commercial and residential real estate properties. The result will be immediate productivity gains for users."

Another example app is Concierge Services, which serves as a personal assistant that is aware of your exact location and is able to inform you of nearby restaurants, entertainment events, and coffee shops, can be used to book tickets for a play, and even provide step-by-step directions to the theater. The user can also find and arrange dinner reservations at the newly opened "hot spot."

Another feature of this is ErrandAutomation, which allows users to select a local destination and a means of notification that updates the selected business, home, or individual of their precise arrival time. For example, as you drive home from work, the sleeve for the BlackBerry could call your home security center when you are 10 minutes away.

How does this work technically? WBT asks Beri.

"POMALS' BoundingBox Technology specifies geographical and/or temporal boundaries for the handheld," he replies. "If the individual carrying the handheld leaves the designated 'box' or does not arrive within the box at a designated time, a contingency action such as a phone call takes place, thus providing true peace of mind."

This patented application, he adds, is of use for both business and family security.

Finally, the Emergency Services feature locates the closest police station, fire station, hospital, doctor, and/or pharmacy, along with concise directions and an overview of the services available. When help is needed, a "Panic Button" can be activated, immediately notifying police or any other designated individual of the user's exact location.

The Shape of LBS to Come
To return to our opening metaphor of the American West, once wild and open to the claim of anyone willing to stake its ground, it is now tame, populated, and industry-driven. Like a diverse, sparsely populated expanse of North America that evolved into the contiguous United States, the location-based industry will coalesce into an industry that will drive the shape and inform the demands of a world population that wants information anytime, anywhere, continuously.

Companies like Peace of Mind at Light Speed, enterprises that are willing to plant their technological stakes into the grounds of the LBS and LAS industries, will forever change the way people live, work, and play. For those companies, the keys to success lie in the ability to improve quality of life, make business efficient and responsive, and enhance the safety and security of everyone.