Locating mobile devices; balancing privacy and national security

Abstract

The issue of privacy protection is raising discussion in society, every time certain ICT developments allow for or simplify the collection, combination or application of new sets of person related data. Location based services (LBS) are amongst these new ICT developments that potentially put the privacy of individuals at risk. LBS technology allows for tracking and tracing the location of mobile phones or other terminal equipment, for example car navigation systems. These are widely available and becoming increasingly precise in defining a location, opening new possibilities for commercial and government use of location information. The increased possibility to know people’s whereabouts, both in a geographical and temporal sense, is posing the question of possibility versus desirability with regard to location privacy.
The EU-Directive on privacy and electronic communications (2002/58/EC, OJ L
201) has anticipated this new ICT development. In addition to ‘traffic data’, necessary for the transmission of a communication, the directive uses the term ‘location data’, being the geographic position of the terminal equipment. Processing of any data for LBS is only allowed if the supplier has got prior, informed consent from the user. The user should have the possibility to block the processing of his location data (him being tracked) in an easy manner when he prefers so. Through the directive the EU has chosen for a strict OPT-IN regime including on-the-fly OPT-OUT.
However, the directive allows national legislation to override the EU provisions for a number of cases. For example, national laws can restrict the privacy protection when this is “a necessary, appropriate and proportionate measure within a democratic society to safeguard national security, defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system” (article 15). This poses the question to what extent government may collect and use tracking information to prevent terrorist attacks, or to satisfy other national security purposes, and consequently limit location privacy.
This research centralised around the question: “How should the right to location privacy of users of mobile phones and other terminal equipment be balanced with the tracing and tracking interests of the (national) security sector?”