DealBook: America Movil Threatens to Pull Bid for Dutch Cellphone Operator

Slipstream: Legislation Would Regulate Tracking of Cellphone Users

THERE are three things that matter in consumer data collection: location, location, location.

E-ZPasses clock the routes we drive. Metro passes register the subway stations we enter. A.T.M.’s record where and when we get cash. Not to mention the credit and debit card transactions that map our trajectories in comprehensive detail — the stores, restaurants and gas stations we frequent; the hotels and health clubs we patronize.

Each of these represents a kind of knowing trade, a conscious consumer submission to surveillance for the sake of convenience.

But now legislators, regulators, advocacy groups and marketers are squaring off over newer technology: smartphones and mobile apps that can continuously record and share people’s precise movements. At issue is whether consumers are unwittingly acquiescing to pervasive tracking just for the sake of having mobile amenities like calendar, game or weather apps.

For Senator Al Franken, the Minnesota Democrat, the potential hazard is that by compiling location patterns over time, companies could create an intimate portrait of a person’s familial and professional associations, political and religious beliefs, even health status. To give consumers some say in the surveillance, Mr. Franken has been working on a locational privacy protection bill that would require entities like app developers to obtain explicit one-time consent from users before recording the locations of their mobile devices. It would prohibit stalking apps — programs that allow one person to track another person’s whereabouts surreptitiously.

The bill, approved last month by the Senate Judiciary Committee, would also require mobile services to disclose the names of the advertising networks or other third parties with which they share consumers’ locations.

“Someone who has this information doesn’t just know where you live,” Mr. Franken said during the Judiciary Committee meeting. “They know the roads you take to work, where you drop your kids off at school, the church you attend and the doctors that you visit.”

Yet many marketers say they need to know consumers’ precise locations so they can show relevant mobile ads or coupons at the very moment a person is in or near a store. Informing such users about each and every ad network or analytics company that tracks their locations could hinder that hyperlocal marketing, they say, because it could require a new consent notice to appear every time someone opened an app.

“Consumers would revolt if this was the case, and applications could be rendered useless,” said Senator Charles Grassley, the Iowa Republican, who promulgated industry arguments during the committee meeting. “Worse yet, free applications that rely on advertising could be pushed by the consent requirement to become fee-based.”

Mr. Franken’s bill may seem intended simply to protect consumer privacy. But the underlying issue is the future of consumer data property rights — the question of who actually owns the information generated by a person who uses a digital device and whether using that property without explicit authorization constitutes trespassing.

In common law, a property intrusion is known as “trespass to chattels.” The Supreme Court invoked the legal concept last January in United States v. Jones, in which it ruled that the government had violated the Fourth Amendment — which protects people against unreasonable search and seizure — by placing a GPS tracking device on a suspect’s car for 28 days without getting a warrant.

Some advocacy groups view location tracking by mobile apps and ad networks as a parallel, warrantless commercial intrusion. To these groups, Mr. Franken’s bill suggests that consumers may eventually gain some rights over their own digital footprints.

“People don’t think about how they broadcast their locations all the time when they carry their phones. The law is just starting to catch up and think about how to treat this,” says Marcia Hofmann, a senior staff lawyer at the Electronic Frontier Foundation, a digital rights group based in San Francisco. “In an ideal world, users would be able to share the information they want and not share the information they don’t want and have more control over how it is used.”

Even some marketers agree.

One is Scout Advertising, a location-based mobile ad service that promises to help advertisers pinpoint the whereabouts of potential customers within 100 meters. The service, previously known as ThinkNear and recently acquired by Telenav, a personalized navigation service, works by determining a person’s location; figuring out whether that place is a home or a store, a health club or a sports stadium; analyzing weather and other local conditions; and then showing a mobile ad tailored to the situation.

Eli Portnoy, general manager of Scout Advertising, calls the technique “situational targeting.” He says Crunch, the fitness center chain, used the service to show mobile ads to people within three miles of a Crunch gym on rainy mornings. The ad said: “Seven-day pass. Run on a treadmill, not in the rain.”

When a person clicks on one of these ads, Mr. Portnoy says, a browser-based map pops up with turn-by-turn directions to the nearest location. Through GPS tracking, Scout Advertising can tell when someone starts driving and whether that person arrives at the site.

Despite the tracking, Mr. Portnoy describes his company’s mobile ads as protective of privacy because the service works only with sites or apps that obtain consent to use people’s locations. Scout Advertising, he adds, does not compile data on individuals’ whereabouts over time.

Still, he says, if Congress were to enact Mr. Franken’s location privacy bill as written, it “would be a little challenging” for the industry to carry out, because of the number and variety of companies involved in mobile marketing.

“We are in favor of more privacy,” Mr. Portnoy says, “but it has to be done within the nuances of how mobile advertising works so it can scale.”

A SPOKESMAN for Mr. Franken said the senator planned to reintroduce the bill in the new Congress. It is one of several continuing government efforts to develop some baseline consumer data rights.

“New technology may provide increased convenience or security at the expense of privacy and many people may find the trade-off worthwhile,” Justice Samuel Alito wrote last year in his opinion in the Jones case. “On the other hand,” he added, “concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions.”

E-mail: slipstream@nytimes.com.

Cellphone Users Steaming at Hit-or-Miss Service

On Friday, four days after Hurricane Sandy, the major carriers — AT&T, Verizon Wireless, T-Mobile USA and Sprint — were still busily rebuilding their networks in the hardest-hit areas.

One-quarter of the cell towers in the storm zone were knocked out, according to the Federal Communications Commission. Many had no power, and their backup battery systems soon drained. The lines connecting those towers to the rest of the phone network were ripped out. Carriers deployed generators to provide power, but eventually those required more fuel — another limited resource.

In an emergency, a lack of cellphone reception can be dangerous, especially as more people have chosen to snip landlines out of their budgets. About 60 percent of American households have landlines, down from 78 percent four years ago, according to Chetan Sharma, an independent mobile analyst.

The carriers say they are trying their best to deal with an unusual disaster. But in the past, they have steadfastly objected to recommendations from regulators that they spend more money on robust emergency equipment, like longer-lasting backup batteries.

Neville Ray, chief technology officer of T-Mobile USA, said Hurricane Sandy was the biggest natural disaster he had ever dealt with and that service failures were inevitable.

“There’s an amount of preparation you can do, but depending on the size and scale and impact of the storm, it’s tough to anticipate every circumstance,” Mr. Ray said in an interview. “No degree of preparation can prevent some of those outages from happening.”

When networks fail, carriers deploy trucks, called C.O.W.’s, for cell on wheels, that act as temporary cell towers. But the companies say the challenge with deploying these trucks poststorm is connecting to power and to the wider phone network, which requires a microwave radio link to a working tower. Because of the density of the buildings in New York City, the trucks could serve only a small area, according to Mr. Ray.

The carriers have made other efforts to provide services while restoring their networks. AT&T wheeled out R.V.’s where customers could charge their phones. And it made an agreement to share networks with T-Mobile USA in the affected areas of New York and New Jersey. When customers of both companies place calls, they are carried by whichever network is available in the area.

But ultimately all of the carriers’ preparations and responses were not enough to get services running again in a hurry. Over the week the carriers reported gradual progress, and they declined to offer timelines indicating when customers could expect to have service again.

The unreliability of wireless networks may point to a bigger problem. Over the years, the phone companies have fought off regulators who want to treat them as utilities, arguing that if they are going to stay innovative, they cannot be burdened with the old rules that phone companies dealt with in the landline era. But as a consequence, there are almost no rules about what carriers have to do in an emergency, said Harold Feld, senior vice president for Public Knowledge, a nonprofit that focuses on information policy.

“With the new networks we’ve prized keeping costs down, we’ve prized flexibility and we’ve prized innovation,” said Mr. Feld, who wrote a blog post on Monday anticipating cell tower problems. “But we have not put stability as a value when we have been pushing to have these networks built out.”

Mr. Feld noted that after Hurricane Katrina in 2005, the F.C.C. recommended that carriers install backup batteries on their transmission towers that would last 24 hours, among other measures. But the carriers objected, presumably because they did not want to spend the money, he said. (Of course, 24 hours would not have been enough in many areas hit by the latest storm.)

In general, the carriers say it is in their own interest to fortify their networks for emergency situations, but Mr. Feld said this incentive was not enough.

“We ought to actually be doing this in the mind-set that there need to be actual rules, so that everybody knows how to behave when the crisis hits,” he said. “When I drive I have the best incentive in the world not to hit a telephone pole and not to slam into another car. But I still need speed limits, stop signs and stop lights.”

Debra Lewis, a spokeswoman for Verizon Wireless, said no amount of rules could have prepared carriers for the outcome of a storm like Hurricane Sandy.

“The fact is, regulation cannot anticipate the varied challenges that can arise in such situations, but we do learn from them and adapt accordingly to ensure we meet consumers’ needs,” Ms. Lewis said. She said the company prepared for natural disasters with generators and batteries that provided at least eight hours of power to cell sites.

Verizon Wireless said Friday evening that less than 3 percent of its network in the Northeast was still down. “In severely impacted areas, such as Lower Manhattan, while wireless service has yet to return to normal levels, coverage is good,” it said.

AT&T was the only major carrier that would not go into specifics about how much of its network was down. Anecdotally it seemed that in Manhattan at least, AT&T’s coverage was not as good as Verizon’s after the storm. One Twitter user directed this message at AT&T on Tuesday: “I live in lower manhattan. Vz has service u do not. You are ruining lives. I had to come midtown 2 call mom. Switching.”

Mark Siegel, a spokesman for AT&T, said the company would not comment because it was working on restoring its network.

F.C.C. Describes 911 and Cellphone Problems

The Federal Communications Commission also said “a small number” of 911 service centers — the sites that receive emergency calls and link them with first responders — also were out of service after the storm, the second time in recent months that 911 service has suffered weather-related failures. Many emergency calls were rerouted, officials said, to call centers that survived the storm.

“Our assumption is that communication outages could get worse before they get better,” Julius Genachowski, the F.C.C. chairman, told reporters in a conference call Tuesday afternoon. “I want to emphasize that the storm is not over,” he said, referring to both the weather and the facilities.

Verizon Wireless said Wednesday that 6 percent of its cell sites remained down in storm-affected areas, although all of its switching and data centers “are functioning normally.” T-Mobile issued a statement saying that roughly 20 percent of its network in New York City was out of service, as was up to 10 percent of its network in Washington.

AT&T declined to specify the status of its systems on Wednesday. All of the companies said they were working to assess and repair the damaged networks.

Some of the emergency calls that were affected by the storm were rerouted to new 911 service centers without electronic location information, which tells the operator where the call originated. This means public safety officials must rely on callers for details about where an emergency was occurring, Mr. Genachowski said.

F.C.C. officials declined to identify where the affected 911 centers were located, or which phone companies were responsible for servicing them.

Roughly one-quarter of the residents of the 10 states that were affected by the storm also lost cable television and broadband Internet service, killing most or all of the connections that millions of consumers were relying on for information.

Few radio broadcasters were affected by the storm, said David Turetsky, the chief of the F.C.C.’s public safety and homeland security bureau. Three stations received F.C.C. permission to broadcast at higher power levels, and one station relocated its transmissions on the broadcast spectrum because of damage to its radio tower.

The F.C.C. activated its disaster reporting information system during the storm, a voluntary system through which wireless, landline, broadcast, satellite and cable TV companies can report the status of their systems. Based on those reports, and its own on-the-ground assessments, the F.C.C. knows where the problems are and which companies are responsible for addressing them, but officials declined on Tuesday to make that information public.

In its manual for use of the disaster system, the F.C.C. says that the information “is sensitive for national security and/or commercial reasons” and therefore will be treated as “presumptively confidential.”

Similar storm-related 911 failures have been the subject of previous F.C.C. scrutiny. The commission is currently in the middle of a formal inquiry into the causes of widespread failures of 911 networks in June resulting from the derecho, a violent wind and thunderstorm.

“From isolated breakdowns in Ohio, Kentucky, Indiana, and Pennsylvania to systemic failures in Northern Virginia and West Virginia, it appears that a significant number of 911 systems and services were partially or completely down for several days,” the F.C.C. said in statements related to that inquiry.

Roughly one million people in Northern Virginia were affected by 911 failures in June, which primarily occurred in systems managed by Verizon. Company officials said before this week’s storm that they had made a number of improvements to their emergency systems and backups that would help them maintain service during the storm.

The commission collected public comments on the 911 failures over the summer, but it has yet to report its findings.

Brian X. Chen contributed reporting from New York.