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Privacy and Security of Information On Mobile Devices

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Released: May 25, 2012

PUBLIC NOTICE

Federal Communications Commission

News Media Information 202 / 418-0500

445 12th St., S.W.

Internet: http://www.fcc.gov

Washington, D.C. 20554

TTY: 1-888-835-5322

DA 12-818

May 25, 2012

COMMENTS SOUGHT ON PRIVACY AND SECURITY OF

INFORMATION STORED ON MOBILE COMMUNICATIONS DEVICES

CC Docket No. 96-115

Comment Date: 30 days after publication in the Federal Register
Reply Comment Date: 45 days after publication in the Federal Register

In this Public Notice, the Wireline Competition Bureau, Wireless Telecommunications
Bureau, and Office of General Counsel jointly solicit comments regarding the privacy and data-
security practices of mobile wireless service providers with respect to customer information
stored on their users’ mobile communications devices, and the application of existing privacy
and security requirements to that information. Since the Commission last solicited public input
on this question five years ago, technologies and business practices have evolved dramatically.
The devices consumers use to access mobile wireless networks have become more sophisticated
and powerful, and their expanded capabilities have at times been used by wireless providers to
collect information about particular customers’ use of the network—sometimes, it appears,
without informing the customer. Service providers’ collection and use of this information may
be a legitimate and effective way to improve the quality of wireless services. At the same time,
the collection, transmission, and storage of this customer-specific network information raise new
privacy and security concerns.
Section 222 of the Communications Act of 1934, as amended, establishes the duty of
every telecommunications carrier to “protect the confidentiality of proprietary information of,
and relating to … customers.”1 Further, every carrier must protect “customer proprietary
network information” (CPNI) that it receives or obtains by virtue of its provision of a
telecommunications service and may use, disclose, or permit access to such information only in
limited circumstances.2 The Commission is charged with enforcing those obligations.3


1 47 U.S.C. § 222(a).
2 See 47 U.S.C. § 222(c); see also 47 C.F.R. §§ 64.2001-.2011.
3 See, e.g., Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of
Customer Proprietary Network Information and Other Customer Information
, Second Report and Order
and Further Notice of Proposed Rulemaking, 13 FCC Rcd 8061 (1998) (1998 CPNI Order); Third Report
and Order and Third Further Notice of Proposed Rulemaking, 17 FCC Rcd 14860 (2002) (2002 CPNI
Order
); Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927 (2007) (2007
CPNI Order
).

In 2007, the Commission updated its rules implementing these statutory obligations to
address the practice of “pretexting”4 and to reaffirm that carriers are responsible for taking all
reasonable steps to protect their customers’ private information.5 At the same time, the
Commission adopted a Further Notice of Proposed Rulemaking to address another emerging
privacy issue: the obligations of mobile carriers to secure the privacy of customer information
stored in mobile communications devices.6 Although the Commission’s particular focus in 2007
was on carriers’ duty to erase customer information on mobile equipment prior to refurbishing
the equipment, the issue of customer information on mobile devices has recently gained greater
prominence. In particular, carriers recently have acknowledged using software embedded or
preinstalled on wireless devices to collect information about the performance of the device and
the provider’s network.7
Comparing the record collected by the Commission five years ago to the publicly
available facts today highlights the need to refresh our record. In response to the 2007 Further
Notice
, AT&T Inc., for example, emphasized consumers’ control of the information residing on
their devices, stating:
[D]ecisions about what personal data to store, or not to store, on a mobile device
rest with the consumer. Carriers do not typically have access to such information
and play no role in determining what information a consumer chooses to store on
mobile devices or how that information is used. Indeed, in some respects, mobile
communications devices are becoming more like computers, laptops, personal
digital assistants and other devices that permit customers to store their
information. In the same vein that consumers erase information stored on those
devices, (or shred paper copies of bills or other documents that contain personal
information), consumers are necessarily in the best position to know what data
they have stored on their mobile devices and to take responsibility for


4 2007 CPNI Order, 22 FCC Rcd at 6928 ¶ 1. “Pretexting” is “the practice of pretending to be a
particular customer or other authorized person in order to obtain access to that customer’s call detail or
other private communications records.” Id. at 6928 ¶ 1 n.1.
5 See id. at 6959-60 ¶¶ 63-66; see also 47 C.F.R. § 64.2010(a) (requiring telecommunications carriers to
“take reasonable measures to discover and protect against attempts to gain unauthorized access to
CPNI”).
6 See 2007 CPNI Order, 22 FCC Rcd at 6962 ¶ 72.
7 See Letter from Timothy P. McKone, Executive Vice President, Federal Relations, AT&T Services,
Inc., to The Honorable Al Franken, United States Senate (Dec. 14, 2011), available at
http://apps.fcc.gov/ecfs/document/view?id=7021920018 (AT&T letter to Sen. Franken); Letter from
Vonya B. McCann, Senior Vice President, Government Affairs, Sprint Nextel, to The Honorable Al
Franken, United States Senate (Dec. 14, 2011), available at
http://apps.fcc.gov/ecfs/document/view?id=7021920019 (Sprint Letter to Sen. Franken); Letter from
Thomas J. Sugrue, Senior Vice President, Regulatory and Legal Affairs, T-Mobile USA, Inc., to The
Honorable Al Franken, United States Senate (Dec. 20, 2011), available at
http://apps.fcc.gov/ecfs/document/view?id=7021920020 (T-Mobile Letter to Sen. Franken). See
generally
Sen. Franken Statement on Responses from Carrier IQ, Wireless Carriers, and Handset
Manufacturers (Dec. 15, 2011), available at http://www.franken.senate.gov/?p=press_release&id=1891
(last visited May 24, 2012).
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safeguarding and erasing that information before disposal or recycling the
device.8
Sprint similarly stated in 2007 that “[w]ireless carriers are not well-positioned to guarantee the
privacy of customer information stored on devices” because those devices are manufactured by
suppliers and “in the physical control and custody of customers.”9
In recent months, it has become clear that these submissions are badly out of date.
Mobile carriers are directing the collection and storage of customer-specific information on
mobile devices. In response to questions from Congress concerning its use of “Carrier IQ”
software, AT&T explained that it gathers customer-specific data as an “enhance[ment of] its
network reporting capabilities” and to collect information about its network from the perspective
of its users’ devices, “a view that cannot be obtained from the network alone.”10 Answering the
same questions, Sprint identified a “legitimate need to deploy and use diagnostic software in the
maintenance and operation of [Sprint’s] services” and described how Sprint worked with the
software vendor to customize data collection for Sprint’s devices and network.11 T-Mobile
likewise stated that it uses software on its customers’ mobile devices to “assist[] T-Mobile in
improving our customers’ wireless experience by capturing and analyzing a narrow set of data
related to some of the most common issues our customers experience.”12 The data collected in
this manner may be shared with a third party for purposes of network diagnostics or improving
customer care.13


8 Comments of AT&T Inc., CC Docket No. 96-115 (July 9, 2007), at 9, available at
http://apps.fcc.gov/ecfs/document/view?id=6519559163.
9 Comments of Sprint Nextel Corporation, CC Docket No. 96-115 and WC Docket No. 04-36, at 21 (July
9, 2007), available at http://apps.fcc.gov/ecfs/document/view?id=6519548080; see also Reply Comments
of Sprint Nextel Corporation, CC Docket No. 96-115 and WC Docket No. 04-36, at 14 (Aug. 7, 2007)
(“Importantly, none of the information (e.g. songs, photographs and address books) stored on a handset is
CPNI and thus [it] is not addressed by section 222 of the Act.”), available at
http://apps.fcc.gov/ecfs/document/view?id=6519610194.
10 AT&T Letter to Sen. Franken at 1; see also id. at 5 (stating that this activity is covered by provisions in
its privacy policy, wireless customer agreement, and end user licensing agreement that AT&T “collect[s]
network, performance, and usage information from our network and customer devices”).
11 Sprint Letter to Sen. Franken at 1.
12 T-Mobile Letter to Sen. Franken at 1-2.
13 See Carrier IQ, Understanding Carrier IQ Technology: What Carrier IQ Does and Does Not Do (Dec.
15, 2011), at 13, available at http://www.carrieriq.com/documents/understanding-carrier-iq-
technology/6461/ (last visited May 24, 2012) (stating that Carrier IQ hosts servers on behalf of some
customers, while other customers host servers in their own data centers); AT&T Letter to Sen. Franken at
3 (stating that AT&T hosts its own servers); Sprint Letter to Sen. Franken at 2 (stating that data is
transmitted to Carrier IQ servers); T-Mobile Letter to Sen. Franken at 4-5 (stating that data is stored on
dedicated servers by Carrier IQ and its subcontractors).
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Commission staff has itself inquired into practices of mobile wireless service providers
with respect to information stored on their customers’ mobile communications devices.14 The
staff’s inquiry has focused on possible harms to consumers and on what service provider
obligations, if any, apply or should apply under section 222 and other provisions of law within
this Commission’s jurisdiction.
In light of these developments, we now seek to refresh the record in this docket
concerning the practices of mobile wireless service providers with respect to information stored
on their customers’ mobile communications devices. How have those practices evolved since we
collected information on this issue in the 2007 Further Notice? Are consumers given meaningful
notice and choice with respect to service providers’ collection of usage-related information on
their devices? Do current practices serve the needs of service providers and consumers, and in
what ways? Do current practices raise concerns with respect to consumer privacy and data
security? How are the risks created by these practices similar to or different from those that
historically have been addressed under the Commission’s CPNI rules? Have these practices
created actual data-security vulnerabilities? Should privacy and data security be greater
considerations in the design of software for mobile devices, and, if so, should the Commission
take any steps to encourage such privacy by design? What role can disclosure of service
providers’ practices to wireless consumers play? To what extent should consumers bear
responsibility for the privacy and security of data in their custody or control?
Specifically with respect to section 222, we seek comment on the applicability and
significance in this context of telecommunications carriers’ duty under section 222(a) to protect
customer information. Further, the definition of CPNI in section 222(h)(1) includes information
“that is made available to a carrier by the customer solely by virtue of the carrier-customer
relationship,” a phrase that on its face could apply to information collected at a carrier’s direction
even before it has been transmitted to the carrier. We seek comment on this analysis. We further
seek comment on which, if any, of the following factors are relevant to assessing a wireless
provider’s obligations under section 222 and the Commission’s implementing rules, or other
provisions of law within this Commission’s jurisdiction, and in what ways:
·
Whether the device is sold by the service provider;
·
Whether the device is locked to the service provider’s network so that it would
not work with a different service provider;
· The degree of control that the service provider exercises over the design,
integration, installation, or use of the software that collects and stores
information;
· The service provider’s role in selecting, integrating, and updating the device’s
operating system, preinstalled software, and security capabilities;
· The manner in which the collected information is used;
· Whether the information pertains to voice service, data service, or both; and


14 The staff’s inquiry has included not only a specific examination of mobile wireless service providers’
practices with respect to information stored on their customers’ mobile communications devices, but also
a broad review of so-called “location-based services” used in wireless communications. See Location-
Based Services: An Overview of Opportunities and Other Considerations, Federal Communications
Commission Staff Report, at 6 (rel. May 25, 2012).
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· The role of third parties in collecting and storing data.
Are any other factors relevant? If so, what are these other factors, and what is their relevance?
What privacy and security obligations should apply to customer information that service
providers cause to be collected by and stored on mobile communications devices? How does the
obligation of carriers to “take reasonable measures to discover and protect against attempts to
gain unauthorized access to CPNI”15 apply in this context? What should be the obligations when
service providers use a third party to collect, store, host, or analyze such data? What would be
the advantages and disadvantages of clarifying mobile service providers’ obligations, if any, with
respect to information stored on mobile devices—for instance through a declaratory ruling?
What are the potential costs and benefits associated with such clarification?
Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 C.F.R. §§ 1.415,
1.419, interested parties may file comments and reply comments on or before the dates indicated
on the first page of this document. Comments may be filed using the Commission’s Electronic
Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking
Proceedings
, 63 FR 24121 (1998).
§
Electronic Filers: Comments may be filed electronically using the Internet by accessing
the ECFS: http://apps.fcc.gov/ecfs/.
§
Paper Filers: Parties who choose to file by paper must file an original and one copy of
each filing. If more than one docket or rulemaking number appears in the caption of this
proceeding, filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or
by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the
Commission’s Secretary, Office of the Secretary, Federal Communications Commission.
§
All hand-delivered or messenger-delivered paper filings for the Commission’s
Secretary must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-
A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All
hand deliveries must be held together with rubber bands or fasteners. Any
envelopes and boxes must be disposed of before entering the building.
§
Commercial overnight mail (other than U.S. Postal Service Express Mail and
Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD
20743.
§
U.S. Postal Service First-Class, Express, and Priority mail must be addressed to
445 12th Street, SW, Washington, DC 20554.


15 47 C.F.R. § 64.2010(a).
5

People with Disabilities: To request materials in accessible formats for people with disabilities
(braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
This is a “permit-but-disclose” proceeding in accordance with the Commission’s ex parte
rules.16 Persons making ex parte presentations must file a copy of any written presentation or a
memorandum summarizing any oral presentation within two business days after the presentation
(unless a different deadline applicable to the Sunshine period applies). Persons making oral ex
parte
presentations are reminded that memoranda summarizing the presentation must (1) list all
persons attending or otherwise participating in the meeting at which the ex parte presentation
was made, and (2) summarize all data presented and arguments made during the presentation. If
the presentation consisted in whole or in part of the presentation of data or arguments already
reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the
presenter may provide citations to such data or arguments in his or her prior comments,
memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such
data or arguments can be found) in lieu of summarizing them in the memorandum. Documents
shown or given to Commission staff during ex parte meetings are deemed to be written ex parte
presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule
1.49(f) or for which the Commission has made available a method of electronic filing, written ex
parte
presentations and memoranda summarizing oral ex parte presentations, and all attachments
thereto, must be filed through the electronic comment filing system available for that proceeding,
and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in
this proceeding should familiarize themselves with the Commission’s ex parte rules.
For further information, contact Lisa Hone, Wireline Competition Bureau, at (202) 418-
1500, Melissa Tye, Wireless Telecommunications Bureau, at (202) 418-0600, or Douglas Klein,
Office of General Counsel, at (202) 418-1720.
-FCC-


16 47 C.F.R. §§ 1.1200 et seq.
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