FCC Proposes Changes to Location Surveillance Rules

February 21, 2014. The Federal Communications Commission (FCC) adopted and released a huge Further Notice of Proposed Rulemaking (NPRM) that would mandate that wireless service providers develop and deploy technology with more precise capability for detecting the location of wireless devices.

The FNPRM and the statements of all five Commissioners state that the purpose of these proposed rules changes is enable first responders to more precisely know the location from which wireless emergency calls are made, particularly from inside of buildings. For the first time, the FCC proposes to mandate the providing of vertical position information, such as from which floor of a high rise building a call is made.

This FNPRM titles this matter "Wireless E911 Location Accuracy Requirements". This 95 page document does not reference the significance of this regulatory regime for surveillance by law enforcement and intelligence agencies. Also, while this FNPRM notes that location surveillance technologies that are now deployed to facilitate commercial services might also be leveraged for this regulatory regime, it does not discuss how regulatory mandates may further the business models of some companies.

Phone location detection was not a matter for FCC regulation before the advent of cell phones and more advanced wireless devices. Calls were land line, and therefore had a fixed location, which phone the companies knew from account information. Detecting location within large buildings was not a regulatory issue. However, it is now.

The FCC began its location detection regulatory regime in 1996 with rules for cell phone service providers. The regulations use the term Commercial Mobile Radio Service (CMRS) providers. Over time the FCC has imposed more stringent requirements.

The FCC's procedure -- and this FNPRM is not an exception -- has been to impose mandates for which no technology exists that could enable compliance, and set short draconian deadlines. This forces the wireless industry companies to invent their way towards compliance, while periodically begging the FCC for extensions of time and waivers, and dodging enforcement actions.

This FNPRM proposes that the FCC adopt rules changes that would require that CMRS providers "must provide to the designated Public Safety Answering Point the location of 911 wireless calls, based on indoor measurements, within 50 meters (by longitude and latitude) no later than two years from [the effective date of the adoption of this rule], and, within 3 meters (vertical height) no later than three years from [the effective date of the adoption of this rule], for 67 percent of all such calls. No later than five years from the [effective date of the adoption of this rule], CMRS providers must comply with the 50 meter (by longitude and latitude) accuracy requirement and the 3 meter (vertical height) accuracy requirement, for 80 percent of all such calls." (Parentheses and brackets in original.)

The proposed rules changes include no mandates to employ particular technologies. However, the FNPRM asks numerous questions about different possible technological approaches, including leveraging data from Wi-Fi and Bluetooth networks.

This FNPRM states that "Consumers are increasingly replacing traditional landline telephony with wireless phones, and a majority of wireless calls are now made indoors. This increase in wireless usage is reflected in how Americans call for help when they need it: today, the majority of 911 calls come from wireless phones. In light of these circumstances, it is increasingly important for Public Safety Answering Points (PSAPs) to have the ability to accurately identify the location of wireless 911 callers regardless of whether the caller is located indoors or outdoors."

Commissioner Ajit Pai (at right) wrote in his statement that "there is tremendous value in transmitting accurate location data to emergency responders whenever someone dials 911. By knowing the location of someone in need, 911 dispatchers can send first responders immediately to the scene. Without it, police officers, firefighters, and emergency medical technicians may spend precious seconds, minutes, or even hours searching for a caller. And that is true whether a call is made indoors or outside."

However, Pai also wrote that "I am skeptical that the timeframes proposed in today’s item are realistic". His fellow Republican Commissioner, Michael O'Reilly, wrote in his statement that "we should avoid imposing location accuracy rules that are too far ahead of available technology. Aspirational goals are laudable, but they cannot be the basis for regulation. Any requirements that develop from this proceeding must be truly feasible as judged by experts operating in the field." O'Reilly added that "The deadlines we impose must also be realistic. I am concerned that the proposed timelines for implementing indoor location accuracy requirements do not meet this objective."

The FCC revised its location surveillance rules in 2010. Recently, the FCC has been prompted by the City of San Francisco (see, one page letter), California Members of Congress, and law enforcement officials to expand its rules. Also, the FCC has been examining this issue.

See also, stories titled "FCC Seeks Comments on Mobile Device Location Surveillance Capabilities" in TLJ Daily E-Mail Alert No. 2,598, September 10, 2013, and "California House Democrats Urge FCC to Amend Phone Location Detection Rules" in TLJ Daily E-Mail Alert No. 2,600, September 12, 2013.

This FNPRM is FCC 14-13 in PS Docket No. 07-114. The FCC adopted it on February 20, 2014, and released it on February 21, 2014. Initial comments are due within 45 days of publication of a notice in the Federal Register. Reply comments are due within 75 days of such publication.

Reaction. AT&T stated in a release that "AT&T fully supports the FCC's goal of improving accuracy in locating ‘911’ wireless callers in both outdoor and indoor locations. Unfortunately, the Commission has tentatively proposed unrealistic targets for location accuracy indoors. Indeed, the recent FCC CSRIC Report shows that no vendor currently has proven technology that can meet the proposed standards. We remain committed to working with the Commission and the public safety community to craft a realistic, effective solution that takes the greatest advantage of existing technology to ensure consumers can rely on ‘911’ no matter where they are or what service they use."

Scot Bergman of the CTIA stated in a release that "we strongly encourage the FCC to consider location accuracy requirements that are grounded in verified data, not aspirational target setting".

Colette Honorable of the National Association of Regulatory Utility Commissioners (NARUC) stated in a release that "This action is an important first step in helping first responders save more lives."

Commercial, Law Enforcement and Intelligence Interests. Wireless companies must have the capability to track the location of a phone to be able to complete a call to that phone. And, the FCC's first set of rules merely required that the companies provide the cell of the 911 caller to the PSAP. However, the FCC later amended its rules to require more precise location data.

The ability to monitor, detect or surveil the location of wireless devices serves the interests of many.

First responders have an interest in having ever more precise location information about persons making emergency calls.

Phone users who do not know their precise location have an interest in emergency responders having access to that information. Many phone users also have an interest using location based services provided via their smart phones. However, many phone users also have interests in not being tracked, stalked or surveiled via their phones.

Businesses already provide a wide range of smart phone based services that rely upon tracking the location of the smart phone. The application developers, phone makers, and service providers make sales because people want to avail themselves of these services. Smart phone privacy settings enable users to control access to location data. Although, some tracking by businesses is surreptitious. Also, these services may also rely upon technologies, such as Wi-Fi and Bluetooth, to provide much more precise data than that now available to PSAPs under the FCC's current regulatory regime.

FCC Chairman Thomas Wheeler related the story in his statement of "a person whose iPad had been stolen -- the location information delivered to the PSAP was off by almost 3 miles, but the information provided using the iPad's location app provided pinpoint accuracy." The FNPRM discloses that the FCC is now eying location data created for these private services, and overriding any privacy settings of the user.

Law enforcement and intelligence agencies have an interest in having ever more precise location information about persons whom they suspect of criminal or terrorist activity. See, story titled "Spiegel Reports that NSA Accesses Location Information and Data Stored on Smartphones" in TLJ Daily E-Mail Alert No. 2,597, August 9, 2013.

Smart phones and wireless networks present law enforcement and intelligence agencies with broad new opportunities for tracking, interception, and other manners of surveillance. These agencies turn to the FCC to impose the rules that compel companies to develop and deploy the technologies that make new methods of surveillance possible.

One can read stacks of FCC documents about its location rules that focus solely on the purpose of providing first responders with more information, and the benefits that this provides to persons in need of assistance. These documents largely ignore the other interested parties, and how this regulatory regime facilitates their pursuit of their goals. These documents also largely ignore how all this might affect persons' interests in liberty and privacy.

Nevertheless, when the FCC regulates location surveillance capabilities, it impacts not only first responders, but also commercial, law enforcement, and intelligence interests.

(Published in TLJ Daily E-Mail Alert No. 2,629, February 24, 2014.)