Congressman Markey (D-Mass.), co-chair of the Bi-Partisan Congressional Privacy Caucus, released a discussion draft of a bill today aimed at addressing the privacy concerns brought to light recently regarding the use of monitoring software on mobile phones. The proposed bill, named the Mobile Device Privacy Act, would require several companies involved with mobile phones to disclose the use of phone monitoring software and obtain the user’s express consent to transmission of data from the phone.
The bill would require disclosures regarding use of phone monitoring software prior to the sale of a phone by the company selling the phone, and after the sale by the wireless carrier, manufacturer, and/or providers of mobile phone apps if monitoring software is later installed on the phone. The required disclosures would identify the following: the types of information the monitoring software is capable of collecting and transmitting, any person to whom the data will be transmitted, how the data will be used, and whether such data will be shared. The bill would also require the Federal Trade Commission to promulgate regulations imposing reasonable information security obligations upon recipients of data from monitoring software.
Violations of the proposed bill could be enforced by the Federal Trade Commission (as an unfair or deceptive act or practice), the Federal Communications Commission (as a violation of the Communications Act of 1934) and state attorneys general. There is also a private right of action with the ability to seek the greater of $1,000 per violation or actual damages, with treble damages for willful violations.
Markey’s bill comes in the wake of the recent controversy over the use by several wireless carriers and phone manufactures of Carrier IQ monitoring software. The Carrier IQ controversy came to light last fall by a researcher who discovered and reported that Carrier IQ software secretly collects vast amounts of data regarding use of a mobile phone. The controversy resulted in Markey requesting investigation by the FTC, Senator Franken (D-Minn.) requesting information from Carrier IQ, and numerous putative class action law suits. In a statement released in response to Senator Franken’s request, Carrier IQ claims that its software is only used by wireless carriers to diagnose network problems and provide customer care.