Thought Exercise on CPNI

             I recognize that many of my posts are technical, complex, and “inside baseball.”  However, the matter of wireless carrier disclosure of location information is really, really, important, and rather easy to understand.  

             For public safety, national security, emergency response, and a host of other issues, location data can save lives.  On the other hand, commercial exploitation of location data can kill people. 

             It does not take too much speculation to come up with scenarios where disclosure for compensation by commercial ventures can trigger catastrophe.  For every bail bond professional tracking of a client who failed to show up in court, there are scenarios where location information makes it far easier for stalking and worse.

             Here’s a thought exercise.  Can you come up with any scenario where a landline or wireless telephone company will reveal to you the name and address of a subscriber?  There are commercial ventures that can disclose home and business addresses associated with a telephone number.  But no telecommunications carrier has ever agreed to disclose either a fixed or mobile location of a subscriber upon a one off, anonymous request. Directory Assistance provided a telephone number if you identified a name and address.  The carriers even monetized unlisted numbers for subscribers who did not disclosure of such relatively benign information.

             What could entitle the wireless carriers to disclose such location data on a commercial, contractual basis?

             Is anyone else livid that their location data was commercialized and monetized for years?  Is anyone disgusted by assertions that the FCC has no legal basis to act?

What Rat You Out Smartphone Surveillance Do You Support?

At law school, I learned about the slippery slope of changing fact patterns that typically trigger a change in analysis and which side of a case I support. Sometimes the process is called a parade of horribles as the circumstances grow ever more problematic.  Such a continuum runs for wireless technologies essential for carriers to provide service, but also able to engage in unprecedented and largely unregulated surveillance, tracking, mining, and money making.

​Readers of this blog understand that cellular radio carriers need to monitor continuously the location of every subscriber with their handsets on.  Such tracking provides the basis for knowing how to route an inbound call to a subscriber and when to provide service (what used to be called dialtone) to a subscriber seeking to make an outbound call. The slope becomes both slippery and increasingly horrible as tracking technologies offer new profit centers for carriers, smartphone manufacturers, platform intermediaries, content providers, social networks, data analytical firms, marketers, advertisers and more.  These stakeholders typically do not pay consumers for access to data about wireless subscribers’ locations, conversations, texts, messages, app uses, etc.

At best, the quid pro quo involves an exchange of something “free,” but not without cost to the consumer.  At worse, consumers receive nothing, may not even know about what takes place and may suffer from the intrusion of privacy, revealed preferences, and analysis that tilts a market transaction in favor of the firm having acquired and analyzed surveillance data.

I hope that readers neither accept the notion that broadband users have no reasonable expectation of privacy, nor do they have anything to fear about data mining.  The miners repeatedly emphasize how they take pains to anonymize the data they collect.  Yet, we should know by now how easy it is for data analytical firms and marketers to identify individuals and know more about us than what the data protection promises claim to safeguard.

It is quite easy for data mining to rat out someone, because they know where we are and how we use our smartphones.  The domestic terrorists/patriots (depending on your politics) should have known that an operational smartphone in their possession regularly records their location, the destination of their calls and texts, and what apps were used.  This is evidenceavailable to law enforcement authorities.  In most instances, the carrier and the manufacturer of the smartphone willingly cooperate with authorities, often without expecting a search warrant. The slippery slope starts in the reasonable law enforcement/national security zone, but quickly moves into territory most of us do not support. 

Just who is doing the rating out?

If you, like most, support the use of wireless metadata, call records, etc. for law enforcement, what do you think about congressional or state legislatures using these surveillance technologies for investigations?  This data can identify who aided and abetted the crimes committed by others on January 6, 2021.  Some people, not physically located at the Capitol, may have actively conspired to execute the carnage.  

What rat you out surveillance technologies violate a reasonable expectation of privacy, and the right to be left alone?  Appreciate the irony that while we might agonize about whether and how these concepts support or block congressional investigations, data miners typically have no constraints, because the terms of service grant a free reign.

Misrepresentations in the Rat You Out Economy

            Most readers over the age of 30 probably know the meaning of “rat you out.”  In crime movies and elsewhere, someone discloses to law enforcement and other authorities the crimes and indiscretions committed by someone else. The rat saves himself from criminal prosecution, or something less hazardous, such as embarrassment.

            We live in a rat you out economy where just about every commercial and even presumed private transaction has an informant with a financial incentive to disclose any and all wants, needs, desires, interests, locations traversed, political affiliation and even crimes that law enforcement would never uncover.   Even trusted intermediaries reserve the option in their service agreements, for which consumers have no option other than “take it or leave it.”  In this world, cellphone carriers can leverage their need to track subscribers’ locations not just to maintain reliable service, but also to create new profit centers from the sale of locational information to willing buyers. 

            A curious example: a political party wanted to know the identities of frequent visitors to Roman Catholic churches.  Despite carriers claims that they anonymize subscriber location information, data analytics firms can use multiple sources to identify individuals, frequenting the churches.  With this amalgamated information, a political party opposed to abortion can target like-minded voters through locational data generated by cellphones, collected by wireless carriers and mined by other data analytics firms.

            Plenty more intrusive, risky and potentially deadly rat you out scenarios exist given the ease in which cellphone location data can identify travel patterns.  A bail bondsman might have an easier time finding someone who ignored a court appearance, but so too can a spurned spouse or lover track and potentially harm the rejecting former partner.

            Bear in mind that consumers have to accept such privacy intrusions and surveillance as part of the cost in participating wireless commerce.  Verizon and other carriers reserve the option of monetizing location data, without discounting service, or the cost of the smartphone.  Wireless carriers accrue real monetary benefits as do Internet firms that offer something “free,” provided subscribers agreed to one-sided terms and conditions. Clearly, the value proposition experienced by consumers contains both benefits and costs.

            If you agree to the last sentence above, perhaps you might see the problem in the relentless campaign by sponsored researchers and policy advocates to remind us about all the upside with nary an acknowledgement about the downside.  A recent consumer surplus love fest was expressed in a Wall Street Journal op-ed bemoaning antitrust scrutiny of large technology firms; see https://www.wsj.com/articles/the-misguided-antitrust-attack-on-big-tech-11600125182.  The authors tout the wondrous monetary savings and life enhancements generously offered by Big Tech firms.  Remarkably, the authors make no reference to offsetting financial benefits transferred from consumer to vendor.  They do not seem to comprehend how the rat you out economy works: consumers benefit from something offered freely, or at less cost, but only if they allow valuable commercial surveillance to occur. 

            I will readily acknowledge that consumers might still come out ahead in a final accounting that offsets benefits with costs, but the authors apparently do not want you to know that negative offsets exist.  Even if the authors had mentioned offsetting costs, they might have dismissed them as insignificant. 

            In the broader world of politics and global business such false accounting joins the rate you out economy.  Apparently the espionage in the surveillance by Huawei, ZTE and TikTok is a perilous threat to national security, but the enhanced value proposition from Big Tech deserves a major Thank You! with no need for antitrust scrutiny.