Thanks in part to feedback from EFF, Google has chosen to take a strong and public stand on what legal privacy protections should apply if the government comes calling for the location data collected by Latitude, Google’s new cell phone-based friend-finding service. Google has decided to match the policy for dealing with law enforcement demands first adopted by its friend-finding competitor Loopt after consultation with EFF, a policy which relies on the strongest possible legal arguments for protecting users’ location privacy. The gist of the Latitude and Loopt policies? “Come back with a warrant.”
Like Loopt, Google’s Latitude doesn’t (currently) keep a historic log of its users’ locations; both companies overwrite the old data each time you report a new location. We think that’s the right move privacy-wise, and hope that between Loopt and Latitude, the we-don’t-keep-historic-logs policy will become the industry standard in the friend-finding space.
Being lawyers, though, we at EFF were just as concerned-if not more concerned-with legal policy: what would Google’s legal position be when a law enforcement agency tried to make it start logging a Latitude users’ location as part of an investigation? This is a particularly important question considering that when it comes to using the phone company’s cell tower data to track your location, the government’s position is that it doesn’t need to get a search warrant (though EFF’s been doing a good job of convincing the courts otherwise).
When it comes to friend-finding services, we think it’s clear that your location information is the content of a private communication between you and your friends, and that it deserves the same legal protections against wiretapping as the content of your phone calls or your emails. Therefore, Loopt’s policy has been to demand that the government get a wiretap order-sometimes called a “super-warrant” since it’s even harder to get than a regular search warrant-before it starts logging a user’s location for the government.
When Latitude debuted early last month, then, our immediate question-to Googlers and to journalists asking for our opinion-was just this: is Latitude going to match Loopt’s policy? Will Google publicly commit to requiring a wiretap order before it will help law enforcement agents track a Latitude user? It’s probably fair to say that we pestered them on this point for several weeks.
Well, we’ve now gotten word back from Google, and the news is good: Google has confirmed that its policy will be to require a wiretap order before tracking a Latitude user’s location for law enforcement.
We are incredibly happy that Google has taken this rare step, not only by making the right decision about the privacy of its users’ data, but by making that policy public. When it comes to government surveillance, the legal interface between law enforcement and your phone and internet service providers is a shadowy place, and it’s often unclear what types of data companies are willing to provide to the government based on what types of legal process. We applaud Google and Loopt’s choice to shed some light on this one corner of the shadowy world of government surveillance, and to send a strong signal to prosecutors and investigators that if they want to track Latitude and Loopt users, they’d better have a wiretap order in hand.
Of course, it remains to be seen how far Google and Loopt will go if faced with a court order that isn’t the required super-warrant. We expect that they would at least challenge it before the issuing judge, and we hope that they would appeal that judge’s decision if they lose the challenge. We may never know for sure, since the records of such litigation are typically sealed. But the public commitment alone is an important step forward, and to the extent either Google or Loopt is faced with a law enforcement demand that they don’t think is up to snuff legally, the lawyers at EFF
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