The final element of the Commission’s revised E911 rules has now been blessed by the Office of Management and Budget. With a Federal Register notice of that fact, Section 20.18 of the rules, as revised last July, has taken effect as of July 25, 2012. The rest of the revised E911 rules took effect last November
Can you find me NOW? Come November, the chances may be better.
Back in July we reported on the adoption of some new rules designed to make it easier to monitor your location (ours too, but we're more concerned about our readers than ourselves) more precisely through your personal communications devices. The Commission’s Report and Order has now been published in the Federal Register, establishing November 28, 2011 as the effective date of the new rules (not including Section 20.18(h)(2), which has to go through OMB's Paperwork Reduction Act drill first). Some of those rules will be phased in over a multi-year period; others may have a more immediate impact on carriers subject to the more stringent testing regimen and the higher level of location-finding accuracy. Whether or not you the mobile device user will notice any difference is not clear, and probably won’t be until (a) you want to be located or (b) somebody wants to locate you. If the former, let’s hope the new rules work; if the latter, well, it probably depends on who wants to locate you and why.
Last month we reported on the Commission’s proposal to enhance the location-identification accuracy of E-911 calls. That proposal has now been published in the Federal Register. As a result, the deadlines for comments and reply comments on that proposal have been established: comments are due by October 3, 2011; reply comments are due by November 2, 2011.
Never mind – the Man will know where you are, even if you don’t
Even as privacy advocates are getting increasingly nervous about the extent to which our communications devices keep tabs on our whereabouts, the FCC is looking to make it easier to monitor our location more precisely and over a broader range of devices. In a combined Notice of Proposed Rulemaking, Third Report and Order, and Second Further Notice of Proposed Rulemaking (let's just go with R&O/NPRM for short), the FCC has taken steps to enhance E-911 accuracy in two respects.
The new measures build upon rules adopted last year in which the FCC tightened and clarified the accuracy requirements for carriers who employ “handset” and “network” solutions for achieving specified location accuracy levels. (Handset carriers rely on the GPS capabilities of the customer’s handset to establish his or her location. Network carriers rely on triangulation of radio signals among cell towers to find their customers.) By requiring accuracy levels to be met at the county or PSAP level, the Commission indirectly raised the accuracy bar by ensuring that high accuracy is achieved in all parts of a carrier’s service area. (The FCC provided exceptions for areas where dense forestation or the lack of triangulation would not permit these high levels to be reached.) These accuracy requirements are to take effect over an eight-year period.
In the R&O/NPRM released July 13, the FCC has ordained that, following that eight-year implementation period, the Commission will do away with the separate network-based accuracy standard entirely.
The network solution was always less accurate and more problematic due to the need for at least three proximate towers to get a meaningful reading. On the other hand, not all cell phones had GPS capability, so there had to be an alternative to the handset approach. But the FCC has determined that GPS capabilities have become so widespread – and are likely to become even more so – that exclusive reliance on the handset standard is appropriate. Eight years, the Commission figures, should give the public plenty of time to wring the useful life out of their existing non-GPS-capable phones before those phones get turned in for something new. The FCC is, however, requiring CMRS systems coming on line after the effective date of the new rules to comply immediately with the more rigorous handset accuracy standard. (In any case carriers can continue to use whole or hybrid network- based location techniques – but they must nevertheless meet the stricter handset-based standard of accuracy.)
The new rules also mandate that carriers conduct periodic tests of their actual accuracy levels, with the results to be reported to local authorities and the Commission itself. The Commission feels, understandably, that if called upon to measure their performance regularly and be judged on the results, carriers will be more likely to make maintenance of accuracy a priority. The exact nature of the tests to be conducted awaits recommendations from the Communications Security, Reliability and Interoperability Council.
Always looking for ways to further the reach of call location technology, the FCC is also seeking comment (in the NPRM portion of the R&O/NPRM) on whether it should extend the E-911 accuracy requirements to outbound-only interconnected voice services. (After much debate, the FCC a few years ago extended the location-identification rules to two-way, interconnected voice services provided over the Internet. The problem was that a computer being used for VoIP doesn’t know where it is, nor does the network, so the customer has to affirmatively register his/her location so the system will know where he/she is. This is not a very good solution since it depends on the customer to vigilantly protect his/her own health and safety rather than making it the service provider’s responsibility.)
So now the FCC is now asking: (a) if it should extend this requirement incrementally to include one-way VoIP calling (a “Skype-out” only situation); and also (b) whether there is some way technically to locate VoIP users that does not depend on registration by customers themselves. No one yet has been able to figure out how over-the-top VoIP providers can possibly do the latter.
The FCC is also seeking input on how indoor calling locations can be established more accurately. This capability will be increasingly helpful as more and more consumers use their mobile phones as their only phone. Locating a cell phone in a ten-story apartment building on a city block would be impossible even with the strictest outdoor standards adopted by the Commission. Finally, the FCC wants to see if WiFi hotspots can somehow be used to help locate callers.
Comments on this forward-looking part of the FCC's action are due 60 days after publication in the Federal Register, with replies 30 days later. (Check back here for updates on those deadlines.)
We cannot close without sounding a warning note on the civil liberties front. The FCC certainly means well in trying to compel carriers and VoIP providers to carefully, constantly and precisely track the location of their customers. But the potential for abuse is already apparent. Divorce lawyers have discovered that they can track an errant spouse's whereabouts by cell phone. Law enforcement now relies on cell phones to easily track not only fugitives from justice but also “persons of interest”. Merchants track people’s whereabouts so that coupons and promotional offerings can be sent to them when they are immediately next to the potential point of sale.
Knowledge of a person’s location, it turns out, is a valuable commodity indeed.
But we are being forced to give this knowledge away for free and without any opt-out choice. The Commission’s R&O/NPRM nods at the privacy concerns raised by the heightened location requirements, but also notes that consumers’ privacy rights are statutorily waived in connection with the delivery of emergency services.
Imagine if a chip were compulsorily implanted in each of us at birth that would permit a government computer to know where we are at all times. In some ways that would be very useful – no lost children, no missing persons, no wandering dementia victims – but the notion is an affront to the inviolability of our persons. Unfortunately, the cell phone, which has become a kind of externally-appended computer chip for many of us, will soon serve that exact function. We are learning once again that “security” is too often purchased with a subtle loss of privacy, a loss of freedom, and a loss of that most cherished right cited by Justice Brandeis in his dissent in Olmstead v. United States: the right to be let alone.