Reps. Edward J. Markey and Joe Barton recently sent a letter to Apple asking for an explanation of the changes it recently made to its privacy policy. The letter, sent on June 24, explains that the updated privacy policy implies that “Apple is collecting and sharing data containing the precise geographic locations of consumers using iPads, iPhones and other Apple products.” The letter then goes on to ask Steve Jobs, Apple’s Chief Executive Officer, nine questions about how location data may be collected, protected and used. According to the letter, the new privacy policy requires users agree to the revised terms before they are able to download any new content from the Apple iTunes store. Thus, Reps Markey (D-Mass) and Barton (R-Texas), who is the co-chairman of the House of Bi-Partisian Privacy Caucus, expressed their concern regarding the ability of Apple users to opt-out of the revised policy while still being able to take advantage of the features of the Apple products that collect the location based data.

The concerns of the lawmakers appear to revolve around the provisions in Apple’s privacy policy that suggest that it might share users' location data with third-party applications. Many of those applications, which have come increasingly to define the user's experience on the iPhone and iPad, are now including location awareness features that enhance mapping, social or promotional aspects of the devices. Further, Apple's broad claim regarding the collection and use of non-personal data collected from its products gives it a wide berth for the use of location-based information. Specifically, the policy reads that Apple may “collect, use, transfer and disclose non-personal information for any purpose." This means that Apple could allow the information to be used for behavioral tracking.

Apple insists in its privacy policy that the location information is collected anonymously and includes no markers that could personally identify users. Analysts disagree, however, showing that large, specific data sets can be used to identify people based on behavior patterns.

The letter also requests information about the unspecified "partners and licensees" with whom Apple said it shares location-based information. It then goes on to ask how the collection of such information complies with Section 222 of the Communications Act, which prohibits companies from sharing information about a consumer's location without first receiving the individual’s explicit prior consent. Specifically, the asks whether Apple believes “that legal boilerplate in a general information policy, which the consumer must agree to in order to download applications or updates, is fully consistent with the intent of Section 222, and sufficient to inform the consumer that the consumer's location may be disclosed to other parties?"

This inquiry demonstrates that companies may not be able to bury terms into their privacy policies that allow them to use personal data, or non-personal, data for any purpose. Further, and perhaps more importantly, it also demonstrates that regulators may not look favorably upon a company requiring a consumer to waive their rights in personal – or non-personal – data simply to enjoy the product. Obviously, this may affect many of the new technical devices that inherently rely upon non-personal data to provide certain applications to customers.

The letter from Markey and Barton is another demonstration of lawmakers focusing their attention on the actions of technology companies. Google recently faced similar inquiries as a result of data it collected for its Google Maps technology. 

Markey and Barton requested a response from Apple by July 12. To date, the response has not been made public. Arent Fox is monitoring this issue and will provide updates as necessary.

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Sarah L. Bruno
bruno.sarah@arentfox.com
202.775.5760