Selling Your Cellphone Location Data Might Soon Be Banned in U.S. for First Time

Massachusetts lawmakers are weighing a near total ban on buying and selling of location data drawn from consumers’ mobile devices in the state, in what would be a first-in-the-nation effort to rein in a billion-dollar industry.

The legislature held a hearing last month on a bill called the Location Shield Act, a sweeping proposal that would sharply curtail the practice of collecting and selling location data drawn from mobile phones in Massachusetts. The proposal would also institute a warrant requirement for law-enforcement access to location data, banning data brokers from providing location information about state residents without court authorization in most circumstances.

Location data is typically collected through mobile apps and other digital services and doesn’t include information such as a name or a phone number. But often, a device’s movement patterns are enough to derive a possible identity of its owner. For example, where a phone spends its evening and overnight hours is usually the owner’s home address and can be cross-checked against other databases for additional insight.

The Massachusetts proposal is part of a flurry of state-level activity to better protect the digital privacy of residents in the absence of a comprehensive national law. Ten states have enacted privacy laws in recent years under both Republican and Democratic-controlled legislatures. Several bipartisan proposals are under consideration in Congress but have failed to gain traction.

No state has gone so far as to completely ban the sale of location data on residents. The most common approach in other states is to require digital services and data brokers to obtain clear consent from consumers to collect data and put some restrictions on transfer and sale.

The bill has drawn the support of a coalition of progressive activists in a state where Democrats have supermajorities in both chambers of the state legislature and control the governorship. The bill is sponsored by Sen. Cindy Creem, a Democrat representing the Boston suburbs, who also serves as the majority leader in the state Senate. 

 “I have every reason to be optimistic that something will be happening in this session,” Creem said. The state’s legislative session runs through next year. 

In the public hearing, the law drew opposition from a trade association representing the technology industry which said it would put the state out of step with others.

“We do support heightened protections for particular types of personal information,” Andrew Kingman, a lawyer who represents the State Privacy & Security Coalition, who testified before a joint committee of the state legislature in opposition to the bill. But Kingman said that Massachusetts should look to a privacy law passed recently by Connecticut as a better alternative to a wholesale ban on location data transfers. “The definition of sale is extremely broad,” said Kingman, adding the industry would support giving consumers “the ability to opt-out of sale.”

Backers of the bill, which include the American Civil Liberties Union and numerous groups that support abortion rights, say that the Supreme Court decision last year in Dobbs v. Jackson Women’s Health Organization allowing states to criminalize the procedure has highlighted the need to protect digital information that is revealing about consumer activities. 

Abortion rights advocates have argued that phone location data—particularly when it is available for sale—could lead to tracking people traveling out of state seeking the procedure. Proponents of the bill also have raised concerns about digital stalking and national security threats to Americans when their data is available for sale. 

The proposal would still allow digital services to collect consumer location information to deliver services to users in the states, such as weather information or a ride-share service, but it would put in place a near total ban on sale or transfer of that data to other entities. 

Public and private access to location data has emerged as a hot-button topic in recent years—especially as government entities such as law enforcement, the military and intelligence agencies have increasingly branched into collecting and exploiting huge data sets that are being made available for sale.  

The Supreme Court has said that a warrant is required for law enforcement to access location data from cellphone carriers in most circumstances. However, the growing availability of data for purchase has upended traditional understandings of law enforcement restrictions on access. 

In a report made public last month, an intelligence community panel acknowledged that the proliferation of commercially available information had begun to eclipse more invasive surveillance techniques.

The Wall Street Journal previously reported that the Department of Homeland Security has purchased the movement data on millions of phones for warrantlessly monitoring the movement of people near the U.S. border and for certain removal operations. 

In addition, the privacy and civil liberties advocacy group Electronic Frontier Foundation obtained public records last year showing that location data has increasingly begun flowing to state and local police departments. One vendor that caters to law enforcement said it has access to the location of 250 million devices in the U.S., though that data often has significant gaps. 

Write to Byron Tau at [email protected]