Taking to cover all electronic communications providers (Skype,

Taking into account that electronic communications include the Internet,
telephone, instant messaging and with all the issues regarding spam, direct
marketing, telecommunication firms, mobile app developers, online advertising
networks, it is highly pertinent to examine the
influence of such communications. This essay will outline one of the
main concerns of the Article 29 Data Protection Working Party1 relating to Wireless
Fidelity(WiFi) tracking and seek to evaluate Regulation on Privacy and
Electronic Communications 2
and online advertising reforms in the light of such issues.

The Working Party3, in general, endorses the
Commission’s proposal4. It should be noted as a
good fact that the Commission applies the rules to cover all electronic
communications providers (Skype, WhatsApp, Facebook Messenger, Voice over IP,
Gmail), not merely traditional providers. Nevertheless, the Working Party5 is “highly concerned6” and one of concerns is tracking terminal equipment. The most
significant issue is related to concerning the respect for private life and the
protection of personal data as the proposed exception in Article 8(2b) of the
Regulation7 is pointed that organisations
can collect information from terminal equipment to track the physical movements
of individuals without the consent of the individual concerned, that also
referred to as “device tracking”. This technology is already in use, for
instance, to map traffic flows on roads. Under such proposal, it appears that
it is sufficient for the party collecting the data to comply by simply telling
users to switch off their devices when they do not want to be tracked. In the
Working Party’s view, such an approach would be “contrary to a basic goal of the telecommunications policy of the European
Commission to provide high-speed mobile internet connectivity with strong
privacy protections at a low cost to all Europeans, across borders8”. Moreover, the opinion
expressed by the Working Party9 states that the Regulation10 does not impose any clear
limitations with regard to the application of the data collection or subsequent
processing. Thus, the level of protection of personal data is “significantly lower than under the GDPR11”, under which such
tracking would need to be fair and lawful, as well as transparent. It is fair
to specify that that merely providing an individual opt-out in respect of each
organisation that collects such data would constitute “an unacceptable burden on citizens12”, considering the
increase in the deployment of such tracking technologies by both private and
public sector organisations. In some cases, for instance in the proximity of a
medical clinic, police or religious institution, location information is
greatly sensitive in itself, even in its raw form without analytics. It is
worrisome that Regulation13 provides a nearly total
permission for any purpose for this type of tracking, upon condition that the
user alerts about the measures which they can take to “stop or minimise collection14”. Indeed, it is highly
difficult to understand this type of use of location data deserves weaker
protection than others. Arguably, the exceptions regarding tracking of location
of terminal equipment are too broad and lack adequate safeguards. In one
research “Tracking human
mobility using WiFi signals15” academics studied during
six months of human mobility data using WiFi and Global Positioning System(GPS)
and found that time series of WiFi scans contain a strong latent location
signal. They were using just one GPS observation per day per person and that
allowed them to estimate the location of, and subsequently use, WiFi access
points to account for 80% of mobility across a population. Such results have
important and dangerous implications for privacy and security as “…it can be used to discover night-watch
schedules, find times when the occupants are not home, or efficiently check
work time of the employees.16” And similar studies are
sufficient17.

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Another curious example about tracking “anonymously” is illustrated via a
Freedom of Information(FOI) request asking London’s transport regulator to
release the “anonymized” data-set it generated from a four week trial when it
tracked metro users in London via WiFi and their smartphones as they traveled
around its network18. Consequently, the email
contained all the tracking information that could be used to identify people. Yves-Alexandre
de Montjoye, a lecturer in computational privacy at Imperial College’s Data
Science Institute, states that “…in a
dataset where the location of an individual is specified hourly, and with a
spatial resolution equal to that given by the carrier’s antennas, four
spatio-temporal points are enough to uniquely identify 95% of the individuals…19”. The location tracking of
the terminal equipment is a powerful tool and used widely in different fields
of life. Some companies prefer to track their employees through a tracking app
on their private or business devices20.  According to an Aberdeen Group study21 in 2014, 54 percent of
companies with field operations are already tracking their employees that are
out of the office, in real time, up from 37 percent in 2012. In healthcare, the
newest technology is a Real-Time Location System (RTLS) to allow used to
provide immediate or real-time tracking and management of medical equipment,
staff and patients within all types of patient care environments22. In 2012, the U.S.

Supreme Court handed down U.S. v Jones23,
a significant privacy decision that addressed location tracking by the
government. In 2013, in U.S. v Katzin24 the Court resoundingly
held it had “…no hesitation in holding
that the police must obtain a warrant prior to attaching a GPS device on a
vehicle, thereby undertaking a search that the Supreme Court has compared to ‘a
constable’s concealing himself in the target’s coach to track its movements…25”.

In Russia, if the user wants to log onto public WiFi according to the
corresponding government decree26 the user must now provide
information that completely obliterates any online privacy27. With respect to Virtual Private Network(VPN), Vladimir Putin signed a
new law28 that Russia likely plans
to block the domains of VPNs and proxies that don’t comply with Russian authorities
to enforce their internet censorship filter29. In UK, there were half a
million requests by public authorities for communications data of which almost
144,000 were demands for “traffic” data, which includes location30. Mobile phone companies
can provide police with real-time location information about the whereabouts of
suspects or missing people at 15-minute intervals. Apple’s devices save every
detail of its owners’ movements on the device, meaning that anyone who stole
the device could discover details about the owner’s movements31. There are a lot of
different examples of location tracking which contradict with the respect for
private life and the protection of personal data32. The only way not to be
tracked is to turn devices off entirely as merely to turn WiFi or Bluetooth off
can be not enough with growing technologies.

Herein, another important issue is
the relation between tracking and advertising. Nowadays, people use many
different online services which contains online advertising. Most businesses
are interested to know where people are responding to their advertisements,
whether at home or on the move. And to analyse that information business uses location
identification through triangulating their position between two Wi-Fi towers or
the phone’s GPS coordinates. Fascinatingly, businesses can expect higher
success when users passively engage with geolocation. Tagging a picture on
Instagram or Facebook tends to provide a more real-time location. Such passive
behavior tends to be more voluntary, where users feel more comfortable sharing
certain bits of information. According to the survey “500 Marketing Decision
Makers” in 2017 “…25% of marketing
budgets are spent on location-based marketing and over 50% of brands are using
location data to target customers…33”. In a Microsoft study
“The consumer data value exchange”34, 89.3% respondents would
share data for location-based discounts. There are many different innovative
brands who use geo-targeting and other location-based tactics. In 2015
Coca-Cola launched a location-based marketing project, where they did not use
their own app, they made it through a popular, third-party app, “…24% of the people that had the app on
their phone clicked on the offer, while 50% collected their free Coke at the
cinema and 60% of those went on to click on retargeting ads served up some time
later and offered a free cinema ticket courtesy of the soft drinks giant…35”.

In Brazil, Nivea used a Bluetooth proximity beacon36 embedded in magazine advertising,
which parents could tear out from the page in the form of a wrist-band for
their children to track how far the children walk away from their parents, by
receiving  an alert when the child walks
out of a pre-defined range. In Russia, mobile app “Parking Douche”37 provides users to take
pictures of poorly-parked cars, such as in the middle of the footpath or garage
entrance. In Germany, pet food company “Granata Pet” developed a kiosk called
Snack Ball Machine which was installed in parks in a number of cities. Each
ball has a beacon sensor in it and dogs which bring the ball back fast enough
(based on tracking the distance traveled) are deemed healthy and a bowl of dog
food is dispensed from the kiosk. In China, McDonald’s partnered with Angry
Birds to create a location-based promotional game to entertain and reward
restaurant visitors38. In regard to foregoing, location-based
marketing is still a growing concept in the marketing world. However, alongside
the opportunities for business and convenience for customers, the key point is
a careful balance to ensure branding is present and the creative delivers a
compelling message that recognises the consumers’ choice to act.

The significant issue is could
someone use online advertising to learn where individual goes for lunch or
sends advertising to his phone to find out when individual leaves the house?
The answer of this issue provides in the New University of Washington research,
where for roughly $1,000, someone with devious intent can purchase and target
online advertising in ways that allow them to track the location of other
individuals and learn what apps they are using39. The
research team set out to test whether an adversary could exploit the existing
online advertising infrastructure for personal surveillance. The researchers
discovered that an individual advertising purchaser can, under certain
circumstances, see when a person visits a predetermined sensitive location
within 10 minutes of that person’s arrival. They were also able to track a
person’s movements across the city during a morning commute by serving
location-based advertising to the target’s phone. As co-author and professor
Tadayoshi Kohno expressed that “…we did
this research to better understand the privacy risks with online advertising.

There’s a fundamental tension that as advertisers become more capable of
targeting and tracking people to deliver better ads, there’s also the
opportunity for adversaries to begin exploiting that additional precision. It
is important to understand both the benefits and risks with technologies…40″.

That could potentially divulge information about the person’s interests, dating
habits, religious affiliations, health conditions, political leanings and other
private information. In the book “Confronting the End of Privacy41”, Andreas Weigend
contends that in a digital environment “…anonymity
is an illusion…42”.

However, being aware of the tactics used in digital marketing may help us
resist alluring messages and think twice before succumbing to this new age of
strategic personalization.

In the light of academic opinions, core law and different publications, the
tracking of the location of terminal equipment needs to be fair and lawful, as
well as transparent, the exceptions regarding WiFi tracking are too broad and
lack adequate safeguards. Some researchers of WiFi tracking demonstrate serious
implications for private life and the protection of personal data. There should
be stricter rules for Wi-Fi location tracking and similar device tracking. At
the same time, online advertising or marketing is directly connected with
location tracking and has become ubiquitous nowadays. Online location-based
advertising has got unconditional advantages for business development in
different fields and also provides some convenience for people yet there are
serious disadvantages as private information, such as the time of leaving home,
could be disclosed, and intruders can use such information for their own
interests. The legislative regulation of such issues is still an open
discussion as in practice there is no ideal mechanism to prevent leacking of
personal information. If people do not want to be tracked then they need to
turn their devices off, especially in public places.

1 The Article 29 Data
Protection Working Party “Opinion 01/2017 on

the Proposed Regulation
for the ePrivacy Regulation (2002/58/EC)” 17/EN WP 247 4 April 2017 (The article
29 Working Party).

2 European Commission’s
Proposal for a Regulation on Privacy and Electronic Communications of 10
January 2017, COM (2017)10 (Regulation on Privacy and Electronic Communications).

3 The Article 29 Working
Party (n 1).

4 Regulation on Privacy
and Electronic Communications (n 2).

5 The Article 29 Working
Party (n 1).

6
Ibid
page 10.

7 Regulation on Privacy
and Electronic Communications (n 2).

8 The Article 29 Working
Party page 11 (n 1).

9 Ibid.

10 Regulation on Privacy
and Electronic Communications (n 2).

11The Article 29 Working
Party page 11 (n 1).

12 Ibid page 11.

13 Regulation on Privacy
and Electronic (n 2).

14 Ibid page 27.

15 Sapiezynski P., Stopczynski A., Gatej R., Lehmann S., “Tracking Human
Mobility Using WiFi Signals” PLSO 10(7) (2015).

16 Ibid page 7.

17 Rekimoto J., Miyaki T., Ishizawa T., “LifeTag: WiFi-based continuous
location logging for life pattern analysis” (2007) page 50; Yves-Alexandre de
Montjoye, César A. Hidalgo, Michel Verleysen & Vincent Blondel, “Unique in
the Crowd: The privacy bounds of human mobility” (2013) SR3.

18 Natasha
Lomas, “How “anonymous” wifi data can still be a privacy risk” TechCrunch (7 October 2017) accessed
28 December 2017.

19 de Montjoye Y., Hidalgo C., Verleysen M., Blondel V., Unique in the Crowd: The privacy bounds
of  human mobility (2013).

20 Andrea Peterson, “Some companies are
tracking workers with smartphone apps. What could possibly go wrong?” UW News (14 May 2015) accessed
28 December 2017; Aigerim Berzinya,
“Employee’s Perspective: Top 8 Issues of Concern If Your Company Wants to Track
You” Turtler (30 November 2017) accessed 28
December 2017; Stephen Schroeder, “Employee GPS Tracking: Challenges and
Best Practices” Turtler (10 May 2017) accessed
28 December 2017.

21 Rebecca Greenfield, “Your
Boss Is Now Tracking You at Home” Bloomberg
(19 May 2015) accessed 28 December 2017.

22 Centrak, “Real-Time
Location System for Hospitals: Improving Facilities for Patients and Staff”
(Centrak, 2017) accessed
28 December 2017; Traclogik “Locate
assets and staff in real-time across wide hospital areas” (Traclogik, 2017) accessed 28 December 2017.

23 (2012)132 S.Ct. 945.

24 (2014) 769 F.3d 163.

25 (2014) 769 F.3d 163.

26 Dmitriy Medvedev,
“Russian Government Decree” (Publication.Pravo.Gov
5 August 2014) accessed
28 December 2017.

27 The Global Voices
“Want to Use Public Wi-Fi in Russia? Let’s See Some ID” The Global Voices (7 August 2014) accessed
28 December 2017; BBC News “Russia
enacts ‘draconian’ law for bloggers and online media” BBC News (1 August 2014) accessed
28 December 2017.

28 The State Duma, “Russian Federal law” (Publication.Pravo.Gov 30 July 2017) accessed
28 December 2017.

29 Caleb Chen “The Russia
VPN ban doesn’t forbid personal or business use of VPNs” Private Internet Access (31 July 2017) accessed
28 December 2017.

30 Paul Lewis “Phone
hacking: Met police to investigate mobile tracking” The Gardian (21 July 2011) accessed
28 December 2017.

31 Charles Arthur “iPhone
keeps record of everywhere you go” The
Guardian (20 April 2011) accessed
28 December 2017.

32 Alan Henry “How Retail
Stores Track You Using Your Smartphone (and How to Stop It)” Life Hacker (19 July 2013) accessed 28 December 2017; Cathy Nolan “Using the
Internet of Things to Track Shoppers” Dataversity (17 February 2017) accessed 28 December 2017.

33 LBMA, “Global Location Trends Report” The LBMA (13 March 2017) accessed 28 December 2017.

34 Microsoft,
“Research reveals understanding gap in the brand-consumer data exchange” (Microsoft APAC New Centre, 3 June 2015)
accessed 28 December 2017.

35 Joseph Seb,
“Coca-Cola has taken a step closer to using
beacons to turn location-based marketing on its head” The Drum (13 August
2015)
accessed 28 December 2017.

36 São Paulo, “The Protection Ad by
Nivea” FCB Brasil () accessed 28 December 2017.

37 CargoCollective,
“Parking Douche” CargoCollective
(2012) accessed 28 December 2017.

38 Amanda Phillips, “Use location marketing to
enhance brand relevance, but don’t become Big Brother” The Guardian
(23 March 2015) accessed 28 December 2017.

39 Jennifer
Langston “For $1000,
anyone can purchase online ads to track your location and app use” UW News (October 2017) accessed 28 December 2017.

40 Phone hacking (n 30).

41 Andreas
Weigend, Data for the People: How to Make
Our Post-Privacy Economy Work for You (2017) 272.

42 Data for the People (n 41) page 150.