With the entertainment industry and ISPs agreeing to a "voluntary" six strikes plan, which treats users as guilty until proven innocent and takes away completely valid defenses (for example: that file is in the public domain is not a valid defense!), you would think that the very least the public could ask for is that the system used to make the accusations is open to scrutiny.

But, of course, there was no one representing the public at the negotiations, so instead, the monitoring system is shrouded in secrecy. No one will speak about it on the record. TorrentFreak has gotten off the record sources to confirm that it's going to be handled by DtecNet, which means we should expect some problems with the accusations. This is, after all, a company that didn't even understand how BitTorrent works, but put out a totally misleading report about it, which was so bad that the company eventually retracted it.

Doesn't it seem highly questionable that no one involved in this plan is willing to discuss the monitoring technology publicly? If they actually had faith that it worked, wouldn't they be showing it off? The problem is they know it's not good. They know it doesn't hold up to scrutiny. They know there will be people falsely accused. But they don't care. As long as they think that they're holding on to some tiny bit of a business model that is pretty much dead... they can pretend that they're doing something smart. And the public and our culture suffers as as result.

DannyB was the first of a few of you to send in this story about a NJ court ruling that said a wife putting a GPS device in her husband's car, in order to help investigators she had hired to tell her if he was cheating on her, was not an invasion of his privacy.

“There is no direct evidence in this record to establish that during the approximately 40 days the GPS was in the ... glove compartment the device captured a movement of plaintiff into a secluded location that was not in public view, and, if so, that such information was passed along by Mrs. Villanova to (Leonard),”

Venkat Balasubramani has an excellent analysis of the ruling and notes some of the oddities in it. The one that struck me in particular was the fact that the court didn't seem to pay much attention to the fact that the car was jointly owned by the couple, which you would think would lend even more credence to the idea that she had the right to put a GPS device on the car:

There was an interesting fact that didn't receive as much as attention as I thought it should: the car was jointly owned. I'm surprised the court did not discuss the fact that since the wife owned the car, she could have argued that she had the right to track its movements. (On a related note, the plaintiff, who was a police office, tried to argue that he used the car for law enforcement purposes once in awhile, but the court is extremely skeptical of this argument.) Another fact that the court did not focus on directly is whether the result would have been different if the investigative firm (rather than the wife) was the one who did the GPS tracking....

It was also interesting that despite using a "reasonable expectation of privacy" standard, the court does not discuss the diminished expectation of privacy for the husband vis a vis his wife . . . who is trying to investigate him for having an affair. I'm not suggesting that spouses waive their privacy rights with respect to one another, but if you're having an affair, is it not reasonable to expect that your spouse may be checking up on you?

I'll admit that I'm not nearly as troubled as I am by similar stories involving police putting GPS devices on cars. In these types of cases, there do seem to be plenty of additional reasons why such GPS tracking is not nearly as egregious. I'm sure putting a tracking device on your spouse (or in their vehicles) may serve as a perfectly good reason for a divorce, but as a legal matter? Seems like a stretch.

There's a fascinating report, via Slashdot, claiming that China has been installing spying devices on all "dual-plate" Chinese-Hong Kong cars for about four years now. Officially an electronic border card, some researchers opened the box and found electronics for recording and transmitting audio. Not surprisingly, this has enabled border patrol officials to be much more effective in figuring out which cars to search:

Smugglers were the first to note something strange about the devices. A source told Apple Daily that after the cards were installed mainland authorities had no trouble picking off the cars carrying illicit goods.

“For every ten cars we ran we only had [smuggled goods] in three or four to reduce the risk, but the border agents caught all of them. The accuracy was unreal!” Apple Daily quoted the smuggler saying.

Last week, we wrote about the plan by Senator Ron Wyden and Rep. Jason Chaffetz to simultaneously introduce bills in both houses of Congress to outlaw location tracking without consent. Those bills have now been officially introduced. The bill is mainly targeted at law enforcement officials who feel they can put GPS devices on cars without first getting a warrant (and the many courts that have backed them up on this). It appears that if this bill becomes law, law enforcement will have to (gasp!) actually get warrants to do GPS tracking.

The bill also does focus on private collection of geolocation data -- and I had initially been a bit worried about that, since there are many cases where that might be reasonable (work related, or when someone purposely allows such info sharing, via services like Google Latitude). However, it looks like the bill has put exceptions in place for such situations. I'm not sure I understand the wisdom of a blanket statement and then exceptions, rather than specifically carving out what's banned, but perhaps it makes sense. Others have pointed out that it would be nice if the bill included reporting on stats concerning how often the government accesses geolocation data, and I agree that would be useful. One reason why people don't think too much about this is they don't realize how frequently the government uses the power to get location data.

We've been noting, over the past few years, the growing number of lawsuits involving the legality of law enforcement tracking people's movements with GPS devices. There are some mixed and contradictory rulings, which means it'll all likely hit the Supreme Court at some point, but a new bill in the Senate from Ron Wyden and in the House from Rep. Jason Chaffetz apparently seeks to do an end-run around all of that and have Congress clarify the law by saying it's illegal to track that kind of data without a warrant. The bill using yet another "cute" acronym is the "Geolocational Privacy and Surveillance Act" -- or the GPS Act. Get it?

I do wonder if some of the prohibitions on "intercepting" such information go too far -- though there is a "normal course of business" exception in the law. The key focus of the bill really seems on law enforcement, and requiring them to take the not-at-all-onerous step of first getting a warrant. This is eminently reasonable, but you can bet that law enforcement is going to go ballistic about how this bill will "harm" investigations and put people at risk. Get ready for the fear mongering... Update: The bill is to be introduced next week, and there may be some changes from the current draft I was basing this on...

With all the reports lately about mobile devices tracking people's whereabouts, Congress (of course) sprung into action to hold grandstanding sessions hearings about protecting privacy on mobile devices. The official title of the hearing was: "Protecting Mobile Privacy: Your Smartphones, Tablets, Cell Phones and Your Privacy." So, it would be natural to expect that most people would talk about protecting privacy on mobile devices. However, one participant went in the opposite direction. Jason Weinstein, the deputy assistant attorney general for the criminal division, decided that the answer to protecting mobile privacy was to make sure there's less mobile privacy... as far as government snoops are concerned.

That is, he used the hearings to suggest a new Justice Department proposal that would require mobile phone operators to collect even more data from their customers than they do already. Yeah, this seems to be the exact opposite of the point of this particular discussion. Of course, our own Derek Kerton has been making this point repeatedly in our comments in the various discussions about Apple and Google tracking locations... and the government grandstanding about it: the government requires that mobile operators track much of this data. And what Weinstein was pitching was that they should track even more of it.

Of course, Weinstein uses the same old excuse for why everyone should have less privacy -- to make his job easier:

Weinstein said, "when this information is not stored, it may be impossible for law enforcement to collect essential evidence.... Many wireless providers do not retain records that would enable law enforcement to identify a suspect's smartphone based on the IP addresses collected by Web sites that the suspect visited."

But, of course, that totally misses the point. We have protections from government for a reason. There is no right for law enforcement's job to be easy. In fact, the rights go in the other direction. Individuals have a right of privacy from the government because we, as a society, supposedly decided that such rights were more important than an all-powerful government. That's what we thought the 4th Amendment was about, but I understand that's been excised from the document lately...

With the new questions being raised about how much tracking data is being recorded (and potentially sent to others) from your mobile phone, Verizon Wireless has come up with a solution that allows it to wipe its hands of the problem: warning labels. Yes, the ever-popular liability minimizing trick of affixing a warning label has made its way into this debate: I'm sure that will settle everyone's concerns.

While there's been plenty of concern in the past couple weeks about Apple's iPhone/iPad location data, followed by Google's Android location data, plenty of people pointed out from the beginning that what both companies have done completely pales in comparison to the sort of data that mobile phone operators regularly collect on you. Even as lawsuits have been filed against both Apple and Google, few of the people who are really upset about those two companies seem to recognize that what the operators have is much, much more complete. The mobile operators, apparently fearing that people may start to realize this, have become a bit proactive and are trying to convince everyone that the real problems are elsewhere -- specifically with apps on phones, not with the service providers. You see, don't worry about all the data we collect. Just look at what those apps are doing:

AT&T noted it “plays no role” in what kind of information smartphone apps collect, while T-Mobile pointed out the ways in which that data can be used.

Sprint lamented “consumers no longer can look to their trusted carrier with whom they have a trusted relationship to answer all of their questions,” particularly on privacy.

And Verizon Wireless called out smartphone app makers directly on the issue, stressing “location-based applications and services (whether provided by us or third parties such as Google) should give customers clear and transparent notice” and control.

This was in response to questions from Congressional Reps. Ed Markey and Joe Barton, leading all of the operators to also admit that they collect such data as well, but really, apps. Apps are a bigger issue. Just focus on the apps. Really. Apps.

TomTom, the troubled GPS navigation device maker, was forced to quickly apologize after news reports came out about how the company had sold aggregate data on driving habits it collected from the devices to the Dutch government, who then used that data to figure out where to set up speed traps and speed cameras. TomTom claims they thought the data would just be used for improving traffic safety, not for speed traps (though, I would imagine that some would claim that speed traps are a way to improve traffic safety). TomTom's CEO Harold Goddijn didn't exactly come off as convincing in saying:

"We don't like that because our customers don't like it... We will prevent that type of usage of our data in the future."

Of course, they could just not like it because it's intrusive. Then they might have thought about it before selling the data. And it's not clear how they can sell the data and only make sure that it's used for one purpose and not others.

Apple and Steve Jobs are semi-famous for the "reality distortion field" that sometimes comes with Apple product announcements. But can it do the same when it screws up. It took a week after the kerfuffle last week concerning iPhones and iPads storing your location for Apple to finally respond, and the full response is an amusing study in corporate doublespeak.

As far as I can tell, Apple's key points are:

1. Apple (not researchers, or tons of other people who have noted this "bug" for a year or so) "discovered" a bug with location data on the phone:

   The reason the iPhone stores so much data is a bug we uncovered and plan to fix shortly

2. There's no tracking going on. There's nothing to see here.

   Apple is not tracking the location of your iPhone. Apple has never done so and has no plans to ever do so.

3. Even though there's no tracking and nothing to see here, it's still a bug which will be fixed.
4. The reason people are concerned about this is because people are confused.

Got that? People are confused and there's nothing to see here, but Apple has discovered a minor bug which will be fixed.

Oh, and did we mention that Apple has also applied for a patent on this particular "bug"?