[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Proposed Rules]
[Pages 35336-35338]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14496]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 96-115; DA 12-818]


Privacy and Security of Information Stored on Mobile 
Communications Devices

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document seeks comment on the privacy and data security 
practices of mobile wireless services providers with respect to 
customer information stored on their users' mobile communications 
devices. In addition, the document seeks comment on the application of 
existing privacy and security requirements to such information.

DATES: Comments may be filed on or before July 13, 2012, and reply 
comments may be filed on or before July 30, 2012.

ADDRESSES: You may submit comments, identified by CC Docket No. 96-115, 
by any of the following methods:
    [ssquf] Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
    [ssquf] Mail: See the SUPPLEMENTARY INFORMATION section of this 
document.
    [ssquf] People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432. For detailed instructions for submitting 
comments and additional information, see the SUPPLEMENTARY INFORMATION 
section of this document.

FOR FURTHER INFORMATION CONTACT: For further information regarding this 
proceeding, contact Douglas Klein, Office of General Counsel, (202) 
418-1720.

SUPPLEMENTARY INFORMATION: This is a summary of a Public Notice 
released by the Wireline Competition Bureau, the Wireless 
Telecommunications Bureau, and the Office of General Counsel on May 25, 
2012. The full text of this document is available for public inspection 
and copying during regular business hours in the Commission's Reference 
Information Center, Portals II, 445 12th Street SW., Room CY-A257, 
Washington, DC 20554. The complete text of this document also may be 
purchased from the Commission's copy contractor, Best Copy and 
Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402, 
Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-
5563 or via email FCC@BCPIWEB.com. The full text may also be downloaded 
at http://www.fcc.gov. Pursuant to Sec. Sec.  1.415 and 1.419 of the 
Commission's rules, 47 CFR 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).
    [ssquf] Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
    [ssquf] 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.
    [ssquf] 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.
    [ssquf] 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.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW., Washington, DC 20554.
    Documents will be available for public inspection and copying 
during business hours at the FCC Reference Information Center, Portals 
II, Room CY-A257, 445 12th Street SW., Washington, DC 20554. The 
documents may also be purchased from BCPI, telephone (202) 488-5300, 
facsimile (202) 488-5563, TTY (202) 488-5562, email fcc@bcpiweb.com.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to fcc504@fcc.gov or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    The Commission has designated this proceeding as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte 
rules. 47 CFR 1.1200 et seq.; Amendment of Certain of the Commission's 
Part 1 Rules of Practice and Procedure and Part 0 Rules of Commission 
Organization, Notice of Proposed Rulemaking, 25 FCC Rcd 2430, 2439-40 
(2010). 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 Sec.  1.1206(b)

[[Page 35337]]

of the Commission's rules. In proceedings governed by Sec.  1.49(f) of 
the Commission's rules 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.

Summary of Public Notice

    This Public Notice seeks comment on 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.'' 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. The Commission is charged with enforcing those 
obligations.
    In 2007, the Commission updated its rules implementing these 
statutory obligations to address the practice of ``pretexting'' and to 
reaffirm that carriers are responsible for taking all reasonable steps 
to protect their customers' private information. 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. 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.
    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 safeguarding and 
erasing that information before disposal or recycling the device.'' 
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.''
    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.'' 
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. 
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.'' The data 
collected in this manner may be shared with a third party for purposes 
of network diagnostics or improving customer care.
    Commission staff has itself inquired into practices of mobile 
wireless service providers with respect to information stored on their 
customers' mobile communications devices. 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 the 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

[[Page 35338]]

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 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'' 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?

Federal Communications Commission.
Jennifer Tatel,
Associate General Counsel, Office of General Counsel.
[FR Doc. 2012-14496 Filed 6-12-12; 8:45 am]
BILLING CODE 6712-01-P