By Jeffrey Neuburger

The long-anticipated federal privacy legislation recently released by Representatives Rick Boucher and Cliff Stearns is only in draft form and  likely will undergo changes before it is formally introduced or enacted into law.

Nevertheless, mobile marketers should pay close attention as the draft bill aims at one of the fastest-growing practices in mobile marketing ? the collection and use of locational data.

While the draft bill's approach to the use of locational data is clear in that, in general, an express opt-in scheme is imposed on the collection and use of such data, the proposal lacks important detail, particularly with respect to the scope of that requirement.

Class act
The legislation delineates two broad classes of information ?with respect to an individual? that is subject to its provisions.

The first class, ?covered information,? includes various categories of name, address, social security number, financial account and biometric information, the collection and use of which subject to the familiar ?notice and opt-out? scheme.

In general, covered data can be collected and used by the collecting entity if a privacy policy containing proscribed disclosures is made conspicuously available to the individual whose data is being collected and used, and the individual does not use the required opt-out mechanism provided.

The heightened concern of the bill drafters about locational data is manifest in its inclusion in the second class, ?sensitive information,? that also includes medical information and information on race, religious beliefs, sexual orientation and certain financial information.

Precisely meaning?
Sensitive data also includes ?precise geolocation information.?

Sensitive data, including such ?precise geolocation information,? would be subject to an opt-in scheme that would require not only the privacy policy and disclosures required for the notice and opt-out scheme, but also the ?express affirmative consent? of the individual before such data is collected or disclosed ?for any purpose.?

Unfortunately and, perhaps ironically, the critical term, ?precise geolocation information,? is not defined in the legislation.

This point did not escape Pam Horan, president of the Online Publishers Association, who said in an interview that if she could ask just one question of Rep. Boucher, she would request an explanation of that term.

Just how ?precise? locational data should be considered probably depends entirely upon the scale at which location is being considered.

We can probably all agree that pinning down a mobile phone user?s location to a particular retail shop is ?precise.? But as the locational scale changes, the meaning of the term ?precise? becomes, well, less precise.

Relative to the entire world, for example, pinning down a user's location to a particular municipality might be considered ?precise? if the municipality is a small town in New Hampshire, but not if the municipality is, say, New York.

Absent a definition in the statute, the task would be left to the agency with authority to enact rules implementing the statute ? in this case of this provision, the Federal Trade Commission.

Calling attention
The draft bill also contains a separate section pertaining only to ?location-based information? that requires any provider of a product or service that uses such data to obtain ?express opt-in consent? before disclosing the data.

This provision would amend Section 222(d) of the Communications Act to  define the term ?call location information,? which is already subject to an opt-in scheme requiring ?express prior authorization,? to mean ?any location-based information.? But that term, like ?precise geolocation information,? is not further defined.

Athough it is impossible to predict what the ultimate fate of the draft bill will be, it is not beyond reason to think that its express-opt-in requirement for locational data will ultimately become law in some form.

The draft bill suggests a number of action items and practical considerations for mobile marketers to consider.

1. It is not too late to get involved by submitting comments on the bill. Although Reps. Boucher and Stearns allotted a one-month period from May 4 for the submission of comments on the draft, the legislative process will offer other opportunities for input from interested parties.

2. All mobile marketing business models should account for the possibility of opt-in requirements in the future.

3. All technology infrastructure build-outs should be designed to readily accommodate an opt-in regime.

4. All user and customer-facing agreements, documentation, terms of use, privacy policies and other communications should be drafted with enough flexibility to accommodate opt-in mechanisms and procedures without undue revision.

Please click here to download the PDF of the draft federal privacy bill.

Jeffrey Neuburger is partner at Proskauer, co-head of the law firm?s technology, media and communications group and a member of the privacy and data security group in New York. Reach him at .