Copyright Law

Four legal predictions for Foursquare

By Denise Howell

While the percentage of people actively sharing their location may still be pretty small, it feels like we’re zooming toward an event horizon, beyond which everyone will be opting in - and checking in - to location services like Foursquare, Places, and others.  Skeptics about the uptake of location services remain, but I’m not one of them. You might, like Sam Diaz, appreciate a good deal (count me in on that point too). Or perhaps you’re a parent in search of an impromptu play date, a businessperson in search of leads or networking, a hipster in search of the night’s hotspot, a techie who enjoys following in Mark Zuckerberg’s culinary wake, or anyone attempting to sync up with a friend or colleague’s schedule and connect in the real world.

Like other online activities, location sharing’s privacy tradeoff ultimately is (or will be, for a great many) overcome by its payoff in convenience, perks, and timely, relevant information.  Unlike many other online activities though, location sharing begins and ends in the real world, inherently carrying with it the goal - and of course the dangers - of real world encounters and consequences.  Given this, it’s inevitable we’ll see the following on the legal front:

1. Location-savvy privacy standards and penalties. Facebook initially drew us in by providing a way to share personal information and media with trusted, contextually appropriate others.  Location services offer the same promise, and ask for the same kind of trust:  namely, that data routing and user sharing expectations will match up.  Such services might yet be on the periphery of lawmakers’ vision, but they’ll react quickly once the consequences of a data leak or user confusion begin to include crimes that make identity theft look quaint by comparison:  rape, murder, home invasion, kidnapping, and the like.  And those interested in your insurability, creditworthiness, or eligibility for benefits certainly would like to check out your check-in data - if they can get it. In the U.S., look for states and the federal government to implement stricter standards and penalties for sites that accidentally leak location data, or fail to clearly inform users when they’re about to share such data publicly or in a new context.  The EU is in the process of overhauling its data privacy protection laws as we speak, in response to the expanding universe of tools that let users “share information about their behaviour and preferences easily and make it publicly and globally available on an unprecedented scale.”
2. Service-side restrictions on employee check-ins. As Sam points out and Facebook illustrated last week, people like deals, businesses like customers, and fundamental to the location service business model is the ability to play transactional matchmaker. Sprinkle liberally with game mechanics and you’ve got a time-and-place sensitive loyalty program - but not if employees skew the numbers by checking in each time they show up for work. Look for location services to fine-tune their terms of service, their in-game incentive system, or both, to help ensure the leads they deliver to advertisers are actually potential customers.
3. Employer-side restrictions on employee check-ins. Just as employers begin to get a handle on employee blogging, tweeting and Facebooking, in roar location services. The “employee mayor” throwing a wrench into one’s marketing program is just the tip of the iceberg. Oh, you say our VP of Sales is mayor of the Pleasure Chest, and our chief engineer just checked again in at HQ of that company we’re not supposed to be partnering with? Legal, please…
4. Geo-located “paper” trails as evidence. Lawyers and litigants in civil and criminal disputes now have a whole new way of answering the question, “Where were you on the night of September 12?” An individual’s check-in history will be subject to subpena and disclosure regardless of the person’s privacy settings if whereabouts or behavior are at issue in court proceedings. That “Crunked” badge might not play so well in child custody proceedings. Working on an alibi? Let’s hope you didn’t check in at the crime scene (or, if you’ve checked in elsewhere, let’s hope you can establish it can’t be faked).

As location services grow in popularity, they add new texture and detail to what is known and knowable about us. Our online and offline activities already are fairly well documented. By voluntarily adding records of our daily movements to the mix, we are giving law and policy makers new challenges to try to guard against unfair or dangerous use of this information.

(Image by thetalesend, CC Attribution-2.0)

Full post as published by Lawgarithms on November 08, 2010 (boomark / email).