Markey Releases Discussion Draft of the Mobile Device Privacy Act

This post was written by Amy S. Mushahwar.

Today, in response to the controversy surrounding cellphone tracking software from Carrier IQ, U.S. Representative Edward Markey (D-MA) released a draft of a cellphone privacy bill.

As background, the Carrier IQ software first made headlines in November, when a researcher posted a YouTube video claiming to show that the Carrier IQ software records users' every keystroke, including the websites they visit, the contents of their text messages and their location. Carrier IQ, a California-based software company, says its software is installed on 140 million phones, but the company does not track keystrokes or user's locations. Carrier IQ now faces a federal investigation and multiple lawsuits on this matter.

The Markey legislation aims to remedy the perceived privacy deficiencies. In its present form, the Markey discussion draft would require companies to:

  • Disclose any mobile tracking software when a consumer buys a device (or after sale if it is later installed by a carrier or placed within a mobile application downloaded).
  • Notify consumers what information may be collected, any third parties to which the information would be disclosed and how such information will be used.
  • Obtain express consent before the tracking software collects or transmits information.
  • Require any third party receiving collected personal information to have policies in place to secure the information.
  • Require any third parties to prepare and file agreements on information with the Federal Trade Commission (FTC) and Federal Communications Commission (FCC).

Additionally, the legislation contemplates outlining an enforcement regime for the FTC and FCC, along with State Attorney General enforcement and a private right of action. Representative Markey is the co-chair of the Bi-Partisan Congressional Privacy Caucus, and he has previously investigated the privacy and data security practices of Google, Apple, Facebook, Amazon, and others.