This article was first published in Data Protection Law & Policy in May 2011
No avid reader of Article 29 Working Party opinions would be surprised to see statements such as "location data from smart mobile devices are personal data" or "the combination of the unique MAC address and the calculated location of a WiFi access point should be treated as personal data". However, when those statements appear alongside references to the night table next to someone's bed, or the fact that specific locations reveal data about someone's sex life, one can't stop wondering whether an intended clarification of the applicable legal framework to geolocation services available on smart mobile devices is getting a bit sensationalistic.
Let's get the basic facts right first: every electronic exchange of information is recorded somewhere - emails sent, web pages visited, telephone calls made, credit card transactions, etc. It is in the nature of the digital age. Smartphones and the like represent the latest form of communications technology and, as such, mobile communications leave behind some of the most sophisticated records that digital technology can generate. So a full assessment of the rules affecting the use of smartphones should go beyond a textbook interpretation of European data protection law and look at whether the collection and use of this information has an impact on people's privacy and data security.
Some of the information generated by our day to day use of mobile communication devices will no doubt be very private. For example, the concepts of "traffic data" and "location data" are carefully defined by EU law and their use is strictly regulated because it is perceived as sufficiently sensitive. Although there are some subtle differences, in both cases the lawful use of such data normally involves obtaining the consent of the individual. However, in the case of location data, consent is not required if the data is anonymous.
This is a crucial point in the context of smartphones-generated data which the Working Party Opinion does not fully appreciate in its recent opinion on geolocation services. This is unfortunate because instead of acknowledging the different types of information that a smart mobile device may produce, all data is dumped into the same bucket. The assumption seems to be that all data collected through a smartphone device should be regarded as personal data despite the fact that some of the data does not identify the device's user, or that the uses made of such data will never involve singling out an individual.
According to the Working Party, because location data from smart mobile devices reveals intimate details about the private life of their owner, the main applicable legitimate ground is prior informed consent. Again, this is a massive generalisation of the multiples modalities of geolocation services, many of which will rely on anonymous data or, at least, data which is not meant to identify or affect a particular user. Therefore, requiring consent from individuals may go further than what the EU legal framework intended.
For many human beings, life without a smart mobile device would be unimaginable. That is a slightly scary thought and regulators have a duty to scrutinise the data protection implications of new technologies that have the power to radically affect our lives. Clarifying how data protection law interacts with continuously evolving geolocation services is a laudable aim from which everyone can benefit. But unfortunately, a black and white approach to this issue conveys an unhealthy sense of panic and, even worse, distracts us from the fundamental challenge: spotting the real threats to our privacy and security that may be caused by rapid and imperfect technological development.
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