Subject: [NEXTEL-1] WHAT HAPPENS WHEN YOU MAKE A 911 CALL?

From: Marcel <[email-masked]>
Date: Tue, 05 Nov 2002 01:43:24 -0500

http://web.uvic.ca/~polisci/bennett/research/CPSA2002.htm

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WHAT HAPPENS WHEN YOU MAKE A 911 CALL? PRIVACY AND THE REGULATION OF CELLULAR TECHNOLOGY IN THE UNITED STATES AND CANADA

Colin J. Bennett,

Department of Political Science

University of Victoria

[email-masked]

Priscilla M. Regan,

Department of Public Affairs

George Mason University

[email-masked]

Prepared for presentation at the 2002 Canadian Political Science Convention, University of Toronto, May 30, 2002

There is now little doubt that the range of complex issues embraced by the term ‘privacy protection’ has assumed a primary place on the political agendas of virtually every advanced industrial state. Twenty years ago it was generally considered a quite esoteric issue of only abstract concern to the general public, and only debated by a quite narrow group of mainly legal experts from different countries. With only a few exceptions, privacy rarely hit the front pages, excited the passions of elected officials, or reached the agendas of the corporate boardrooms.

Now the issue is always in the news. Few governmental initiatives, whether in North America or overseas, do not have some implication for the collection and processing of personal information. New practices, such as video-surveillance cameras, biometrics, smart identity cards, drug-testing, telemarketing, genetic databanks and so on, often introduced with good intentions, can have unintended consequences for the protection of personal information. Insensitivity to privacy concerns can threaten the careers of government Ministers, as occurred with regard to the recent controversy over the longitudinal database compiled by Human Resources Development Canada. It is the subject of countless legislative hearings, and is on the agenda of many international bodies. Many large businesses now have privacy codes and privacy protection officers.

And mass publics fear that their privacy is under threat from a variety of institutional and technological sources. If not "the defining issue of the next decade" as the current Canadian Privacy Commissioner is fond of asserting, it is definitely an "issue whose time has come" (Kingdon, 1984), even though it still tends to attract very little attention from political scientists.

Surveillance practices are changing in kind as well as degree. Thirty years ago, citizens were normally aware when personal information was being collected. They complained about the number of forms they filled in, and the range of intrusive questions, but generally knew who was asking what questions for what purposes. Now the process of information gathering is more surreptitious, as we leave traces of personal data in the process of going about our everyday lives: booking a hotel or airline, browsing the Internet, sending an e-mail, crossing an international border, going to the doctor, and so on. In our roles as citizens, consumers, employees, travelers, patients, students, recipients of social benefits, or whatever, we continuously and unawares leave fragments of our data behind us (Cavoukian and Tapscott, 1995). These transformations represent a significant paradigm shift from the fears of the centralized "Big Brother" databanks of earlier decades.

This paper is founded on the assumption that the privacy protection issue is undergoing a further paradigm shift as a result of the introduction of technological practices that permit a precise tracking of an individual’s position and movement. Organizational interests are now no longer confined to understanding individuals and their behaviors in static terms. Rather public agencies and private businesses might have significant interests in knowing not only who we are, but also where we are, and how our behaviours, preferences, needs, and identities change as a result of location.

Surveillance of movement also has public policy benefits. In particular, an understanding of location can enhance the operation of a community’s emergency response services; these advantages have been exposed during the recovery of the victims of the September 11th attack in New York. Conversely, these public interests need to be understood and balanced against the potential for inappropriate surveillance by both public and private sector organizations. A trite example that has entered the lexicon of the privacy advocate is that of the pop-up Starbuck’s advertisement that may appear on one’s handset at precise, but unpredictable moments: "Good morning, Colin! Want a cup of coffee? 10% discount at the Starbucks on the next corner!"

At the heart of these debates is the proliferation of the cellular (mobile) phone, and associated technologies such as personal digital assistants (PDAs), and onboard vehicle telematics systems. Under what circumstances, therefore, should mobile telecommunications devices be used by organizations to pinpoint that user’s location? What should happen to that data? With whom may it be shared? For what secondary purposes might it legitimately be used? These questions are only just being considered by advocates and regulators in advanced industrial states. But some initial indications of how they are being resolved emerge from recent debates in the US and Canada, as a result of pressures to make cellular phones ‘E 911’ capable. This paper is a comparative policy analysis of this quite precise, but potentially significant, issue.

The US and Canada have both faced this same problem, namely how to effectively dispatch emergency response services when 911 calls are made on cellular phones. On wired line calls, systems have evolved over the years in both countries to route the call to the correct public service answering point (PSAP) based on knowledge of phone number (Automatic Number Identification – ANI) and geographic address (Automatic Location Identification – ALI). Although cellular phones are often marketed as safety devices, it is not commonly realized that 911 calls may not get routed properly. Under many circumstances, location has to be verified verbally and is thus subject to human error. These problems were realised in both countries in the late 1980s when mobile phones first entered the consumer market. They have proliferated as the penetration of cellular phones, and other mobile devices, has increased in both countries.

So a genuine, if poorly understood, problem for public safety has confronted cellular industries and regulatory systems in both countries at a time when privacy protection is of enormous importance and concern. The case, therefore, involves an interesting interplay between public policy imperatives, economic interests, regulatory styles, and cultural values. In this paper, we try to chart how these interests have clashed, and how, to date, the two societies have approached the same policy problem. The comparative case analysis is based on the assumption that some interesting conclusions about policy styles and processes can be reached from the analysis of quite focussed policy problems that hit the agendas of different advanced industrial states at similar times. Such comparative analysis can lead to insights into the capacities of those states to manage technological change. New policy problems provide a kind of naturally occurring experiment that mitigates many of the problems of cross-national equivalence attached to policies with longer historical legacies and entrenched interests (Bennett, 1996, p. 313).

The paper begins by outlining the policy developments in the United States and Canada, focussing on the different roles played by stakeholders and regulators. Cell phone tracking in the United States was propelled by a Federal Communications Commission (FCC) mandate that all cell phones manufacturers need to ensure that their handsets are "E-911" capable. In Canada, the process has proceeded more deliberately through a series of trials (in Alberta and Ontario) coordinated through the Canadian Wireless Telecommunications Association (CWTA). So far there has been very little regulatory intervention from the Canadian Radio and Telecommunications Commission (CRTC).

We then conclude by investigating two dimensions of comparative analysis: the policy processes for providing emergency wireless location information and the policy processes for protecting privacy in that environment. With respect to both policy dimensions, the approaches of the two countries have diverged. With respect to emergency wireless location information, similar technologies and similarly perceived public policy benefits have led to contrasting policy approaches in Canada and the US. Interestingly, in the US the government, through the FCC, took the lead in putting the issue of wireless E-911 on the agenda, initiated policy alternatives, and provided an incentive and a forum for industry and public safety representatives to cooperate. In Canada, the government, most especially the CRTC, has so far stepped back to allow the affected parties to cooperate and develop a workable solution without government oversight. This paper attempts to explain the difference in regulatory styles, and to reach some more general conclusions about the interaction of institutional, economic, and technological interests in the two societies.

With respect to the second dimension, privacy protection, policy processes also diverge, with the US acting before Canada and acting somewhat more aggressively than is typical, by legislating to protect the privacy of information obtained through wireless E-911. In Canada, somewhat surprisingly, the federal and provincial privacy commissioners have not yet acted, although recently passed omnibus legislation to protect privacy in the private sector has some bearing on the cellular industry. Moreover, American industry and public safety organizations have so far been more proactive on cellular privacy issues that have their counterparts in Canada. In conclusion, however, we suggest that there is a strong technological imperative at work that is likely over time to produce a significant convergence of the outcomes of Canadian and US policy, and the continued erosion of personal privacy.

The American Approach to Wireless E-911: FCC Prodding and Industry Reluctance

In the United States the Enhanced 911 (E-911) system facilitates effective emergency response times by providing both Automatic Number Identification (ANI) and Automatic Location Identification (ALI) for all emergency calls. E-911 service relays the name, address, and telephone number of the caller to the emergency operator. With a fixed location, the Public Service Answering Point (PSAP) can easily determine where the caller is and the best route to get to that person. During the 1990s, most 911 systems and PSAPs upgraded to E-911. According to the FCC, 89 percent of wireline phones in the US are served by 911 and about 85 percent of 911 services include E-911.

But if callers use cell phones to place 911 calls, there is no address or location information relayed. Instead emergency personnel have to rely on the person making the call to help identify where he or she is. In many emergency situations, this has not been possible to do accurately for a variety of reasons: linguistic problems in multi-ethnic cities; confusions of street addresses; the provision of false information; or simply ignorance of location -- when, for example, a caller is in a remote rural location in bad weather at night. Adding to the difficulties of callers and emergency personnel is the fact that in several states emergency callers cannot reach emergency services by simply calling 911. The scale of the problems associated with wireless emergency services grew as the use of cell phones expanded. At a Senate subcommittee hearing in 1999, the president of an emergency services and technology company testified that the industry estimated there were 98,000 wireless calls a day in the US, and that PSAPs reported that between 25 and 33 percent of the calls they receive are made on wireless phones. These numbers have only increased with time as the popularity of cell phones has expanded.

In 1996 the FCC adopted rules and a framework to improve wireless 911 service by including wireless calls in the E-911 system. The 1996 rules were one step in an ongoing process that began in 1994 with the issuance of a notice of proposed rulemaking and is likely to continue for some time into the future. The FCC has moved into this area because of its responsibility under the Communications Act of 1934 to promote "safety of life and property through the use of wire and radio communication." In its documents and press releases, the FCC defines its role not as one of compelling or directing, but as one of "promoting cooperative efforts," "prompting the accelerated delivery," and "making sure that ongoing processes are in place."

Several outside initiatives and reports have influenced the FCC’s rulemaking process and the substance of those rules. Public safety organizations and the wireless telecommunications industry both recognized the problems posed by wireless 911 calls and in the summer of 1994 began jointly to explore the problem and alternative solutions. In June 1994, the Association of Public-Safety Communications Officials International, Inc. (APCO), the National Emergency Number Association (NENA), the National Association of State Nine-One-One Administrators (NASNA), and the Personal Communications Industry Association (PCIA) issued an "Emergency Access Position Paper." In October these same groups organized a Joint Experts Meeting and issued a report on the technical and policy issues associated with a transition to wireless E-911. The report did not contain standards or an implementation schedule. Following this report, the FCC issued its notice of proposed rulemaking.

The goal of the FCC was to provide wireless callers with the same level of access to 911 services that is available to wireline callers. In effect, the goal was to extend E-911 to the wireless system. As was true of the Joint Experts groups, the FCC did not establish standards, believing that was "a task for which standards-setting committees are better equipped." Rather, it saw its roles as proposing "general performance criteria." To this end, the FCC proposed a three-step process:

within one year, wireless carriers would need to be able to relay to the PSAP the location of the base station or cell site receiving a 911 call;

within three years, the wireless service provider would need to approximate the location and distance of the cell phone from the receiving base station or cell site; and

after five years, the location of the cell phone would be specified to a radius of no more than 125 meters.

The FCC’s proposal generated comments from more than 110 parties. In general, public safety organizations and the wireless industry supported the deployment of wireless E-911 but took different positions with regard to the need for federal regulation and the schedule for E-911 deployment; public safety organizations supported the 5-year schedule and the wireless industry opposed a fixed schedule. Following the comment period, the Cellular Telecommunications Industry Association (CTIA) and three public safety organizations, APCO, NENA, and NASNA, filed a Consensus Agreement, which proposed a two-step deployment schedule.

The FCC’s 1996 final rules were modeled after this Consensus Agreement among wireless carriers and public safety representatives. The rules were divided into two phases. Phase I rules require carriers to provide PSAPs with the telephone number of the 911 caller, the location of the cell site or base station receiving the cell phone, and call back capability. Reflecting the interests of the public safety organizations, the FCC gave the carriers a year to comply with Phase I rules. The industry preferred an 18-month deadline. Phase II rules require wireless carriers to provide more precise location information, with the relay of Automatic Location Information (ALI) within 125 meters or about 410 feet of the call’s origination. The FCC assumed that this information would require a network-based solution, involving some triangulation of the handset’s signal. The deployment of Phase II requires both development of new technologies and also coordination among public safety agencies, wireless carriers, technology vendors, equipment manufacturers, and local exchange carriers. Due to the anticipated complexity, the FCC established a four-year schedule for its Phase II requirements beginning October 1, 2001 and ending December 31, 2005.

The FCC’s action precipitated discussion of a number of related policy issues including: technical alternatives to providing location based information; the cost to carriers and PSAPs; the liability of carriers; and the privacy of cell phone users. Each of these was addressed in a variety of forums with input from a number of stakeholders. The implementation of wireless E-911 requires cooperation among several parties – wireless carriers, equipment manufacturers, PSAPs, and state and local governments. As implementation and policy discussion proceeded, the FCC played a major role in monitoring the process. Much of the FCC’s time has gone to considering waivers by wireless carriers regarding the Phase II deadlines for compliance. One of the FCC Commissioners described the FCC’s role in these terms:

Our E-911 regime was a government-led effort to speed the development and deployment of a new technology prior to a commercial demand for that product. It was not based on any statutory mandate; nor was it based on any tangible technological showing. It was a tremendous undertaking, full of uncertainty about the technology, the timing, and the costs for all parties…Each step forward in this process has been engendered by a constructive dialogue amongst all of the parties based on an evolving knowledge base.

Since passage of the Telecommunications Reform Act of 1996, telecommunications providers have been wary of "public service" requirements that impose costs on the carriers that they have to bear themselves or pass on to consumers. In either case, carriers argue that such requirements drive up the cost of basic phone service. From their perspective the wireless E-911 requirements fit into this category of ongoing concerns. The cost issue was shared by the PSAPs, of which there are approximately 5,000 in the United States. In order to implement wireless E-911 effectively, PSAPs have to upgrade their systems to accommodate location information and to install digital switches. PSAPs are primarily local, public, decentralized units – some cross state boundaries but most are at the state level. Additionally PSAPs are generally served by more than one wireless provider and therefore might have to incorporate a variety of technological solutions.

Initially the FCC envisioned network-based solutions for Phase II compliance whereby network hardware would provide location information. The wireless industry and equipment manufacturers inquired whether handset-based technologies using the GPS system might provide a feasible alternative. In 1997, the FCC, in the interests of technological and competitive neutrality, issued an E-911 Reconsideration Order and considered revising its rules in this respect. In 1998, the FCC began to permit consideration of waivers for handset-based solutions to Phase II rules, and compiled an extensive hearing record on the comparative merits of the two solutions. It considered not only theoretical arguments about technical capacity and expected evolution, but also the experiences that different jurisdictions and companies had in using the technologies. For example, a six-month trial in King County using handset-based technology using GPS chips, located 100 percent of calls with an average accuracy of 23 meters. Ninety-four percent of the calls were located within the FCC’s required 125 meters.

In 1999, the FCC revised its Phase II ALI rules to permit both network-based solutions and hybrid solutions that would require changes both to handsets and wireless networks. Although the FCC’s action allowed industry to develop innovative and cost-effective solutions, the lack of technical standards for digital wireless in the US complicated the implementation of wireless E-911. The FCC did, however, try to facilitate discussion among the players by hosting, for example, a roundtable discussion of technical issues with participants from both industries involved in network-based solutions and those involved in handset-based solutions, wireless carriers, public safety representatives, and equipment manufacturers.

This flexibility on the part of the FCC was designed to accommodate the interests of industry and speed the implementation of the Phase II requirements. This has not occurred. The first deadline, October 1, 2001, witnessed a number of waiver requests by five nationwide wireless carriers -- Nextel, Sprint PCS, Verizon, Cingular, and AT&T. All the major carriers proposed a hybrid solution with some reliance on handset technology. All asserted in their waiver statements that equipment and software problems had slowed down their implementation, and all asked for at least a year extension. On October 19th the FCC also provided guidance to small and mid-size carriers seeking relief from Phase I ALI rules. Without question implementation of the FCC rules has not proceeded smoothly.

The FCC’s waiver order in the case of Nextel illustrates both the wireless carriers’ arguments and also the FCC’s frustration. Nextel requested relief because its network uses the iDEN air interface and it is dependent on one equipment manufacturer, Motorola, to develop a prototype iDEN handset with GPS capability and to modify the iDEN network infrastructure to support this solution. Nextel proposed a revised schedule, based on what Motorola had promised, that would still meet the final Phase II deadline of December 31, 2005. AT&T Wireless, Motorola, and Pacific Wireless filed comments supporting Nextel’s position. Public safety organizations – specifically APCO, NENA, and NASNA – submitted summary comments on all the waivers as well as comments in individual cases. Citing the terrorist attacks of September 11th and the length of time that carriers knew the deadlines, they argued "the Commission must stand firm on this and other deployment deadlines. Otherwise there will be little incentive for carriers and others to fulfill the promise of wireless E-911." The public safety organizations recognized that the FCC was very likely to grant the waivers and admonished the FCC to follow these principles:

No waiver unless the proposed solution meets the relevant accuracy requirements;

Carriers that caused delay, for example by not ordering equipment in a timely fashion, should not receive waivers;

There should be serious and automatic penalties for failure to meet deadlines; and

Quarterly progress reports should be filed with the FCC.

The FCC granted Nextel’s waiver because its plan met the criteria of being "specific, focused, and limited in scope. Additionally the FCC required Nextel to file quarterly reports and to propose an alternative location technology in case its proposed solution fails to meet Phase II accuracy requirements. Three commissioners, including the Chair, issued separate statements and one commissioner dissented, issuing a separate statement criticizing carriers, manufacturers, and the public safety community for not making an extra effort, expending extra resources and doing a better job.

Liability and privacy issues also appeared to be two of the major factors slowing implementation of the FCC rules and these concerns brought Congress directly into the policy discussions. At Senate hearings, Senators and industry representatives touted S. 800, the Wireless Communications and Public Safety Act of 1999, as legislation that would promote and enhance public safety by removing barriers to effective implementation. The Cellular Telecommunications Industry Association (CTIA), with over 750 members including domestic and international wireless carriers, and equipment manufacturers, spoke strongly of the need for legislation to enhance emergency response systems and to give parity regarding liability protection to new telecommunications providers. The CTIA noted the similar support of other key associations including the American Automobile Association (AAA), the National Emergency Numbers Association (NENA), and the Associated Public Safety Communications Officials (APCO).

In the Wireless Communications and Public Safety Act of 1999 (PL 106-81) Congress supported the FCC actions to designate 911 as the universal emergency phone number for wireless and wireline calls and required the FCC, states, and local governments to coordinate wireless E-911. The Senate found that "in part because wireless companies have not been provided with the same liability standards as wireline companies," nationwide implementation of E-911 had not occurred. Section 4 of the law gave wireless carriers, users, providers and PSAPs the same liability protection regardless of whether a call originated from a wireless or wireline phone.

Section 5 of the Wireless Communications and Public Safety Act (WCPSA) of 1999 amended Section 222 of the Communications Act of 1934 to require a customer to give prior authorization for any disclosure of call location information for a purpose other than the delivery of emergency services. This section requires customers to "opt-in" to secondary uses of call location information gathered from an E-911 call but authorizes disclosure of that information to public safety personnel. Section 5 also requires telecommunications carriers to provide subscriber information, which includes name and address, to providers of emergency services solely for purposes of delivering or assisting in the delivery of emergency services.

In November 2000, the Cellular Telecommunications and Internet Association (CTIA) proposed that the FCC initiate a rulemaking procedure to protect the privacy of location information more generally. The CTIA endorsed the principles of notice, consent based on opt-in, security and integrity, and technology-neutral (Long, 2001, pp. 3-4). Several industry analysts predict that location-based mobile commerce, as illustrated earlier by reference to the Starbuck’s ad, will be advantaged by wireless E-911. As one analyst noted: "The carriers have been mandated to deliver E-911, and they will very much want to find a way to recoup their investment on this thing." On July 11, 2001, Senator John Edwards introduced the Location Privacy Protection Act of 2001 (S.1164) to require a customer’s "express authorization before collecting, using, retaining, or disclosing" customer location information. In the United States, therefore, the issue of locational privacy is firmly on the political agenda.

The Canadian Approach to E-911: Consensus-Building without Regulation

The policy problem in Canada is neatly expressed by this advice leaflet from the Canadian Wireless Telecommunications Association (CWTA):

When you call 911 on your home telephone, your call is sent to the nearest emergency response centre. In many locations, the 911 network also passes along your telephone number and address so a 911 operator can call you back, if necessary, and help can be sent immediately to your exact location. Unlike your home telephone, mobile phones generally do not pass along the telephone number or any other customer information when you make a call. This means that, when you call 911, you have to give your complete number to the 911 operator – including your mobile phone area code. This is important because the operator may have to call you back if you are disconnected. In addition, you have to tell the operator, as best you can, exactly where you are. Remember, your mobile phone can be used anywhere service is available. Only you can provide your precise location or the location of the emergency.

So, as in the US, mobile phones are a mixed blessing in an emergency. They are on one’s person, but they do not, without human explanation, relay any information about phone number or location. The average response time for dispatching emergency services is, therefore, a lot longer.

In the United States, the interests of the fire, police and ambulance 911 community could be articulated through organizations such as APCO, NENA, NASNA and PCIA. There have never been equivalent national associations in Canada; a Canadian Chapter of NENA was begun several years ago, but has never been that active. Moreover, very few municipalities have personnel whose sole responsibilities are confined to 911 policy questions. In the mid-1990s when the magnitude of the problem first became apparent in Canada, the only institutional arenas through which concerns could be articulated were the provincial ‘911 Advisory Boards.’ The mission of that in Ontario is to: "serve as an authoritative source of information and expertise to Ontario Municipalities respecting the implementation and operation of 911 Emergency Number Systems; to develop operational, training and performance standards for 911 systems; and to promote public education and serve in an advocacy role to represent the interests of Ontario ratepayers." But these boards only meet four times a year, are not active in every province, and do not provide a convenient and regular forum either for the resolution of technical matters, or for negotiation with key industry stakeholders.

For these reasons, a few prominent members of the Canadian PSAP community urged the CWTA, the trade association responsible for advancing the interests of the Canadian cellular industry, to take the lead and establish a national forum to review the technical, operational and regulatory implications of integrating wireless 911 into the existing wireline 911 infrastructure. The CRTC also identified the problem through its Interconnection Steering Committee. Since 1997, an E-911 Working Group has been working under the auspices of CWTA. This group includes membership from the major cellular providers in Canada (Bell Mobility, Microcell, Telus Mobility, Rogers Wireless), from York and Toronto police departments, and from other representatives of the PSAP community. A member of the CRTC maintains a watching brief.

The main approach of this committee has been to organize and monitor trials. The first occurred in Calgary, Alberta from October 1999 to April 2000, largely as a result of a technical proposal submitted by Telus, the incumbent local exchange carrier in the West. Four wireless service providers participated in the trial, which tested the interconnection between the provincial 911 platform, operated by Telus, the wireless carriers and the PSAPs. This enabled the delivery of information relating to the location of the wireless antenna receiving a 911 call, as well as the 10-digit telephone number of the mobile subscriber placing the call. This functionality is equivalent to what the FCC established as part of its Phase I requirements. The final report of this trial indicated that participants were generally satisfied that accurate information on call-back number and station location was provided to the 911 operators. The results also demonstrated that the technical solutions could be applied in any other province with a similar E 911 delivery platform (Long, 2001). However, the limited trial area and the involvement of only one PSAP meant that the delivery of call-back numbers to secondary PSAPs, and the associated routing issues, could not be properly examined.

A second trial was therefore initiated in Toronto and North York in Ontario, a potentially more complex urban environment, involving more than one primary PSAP. This trial exposed some technical complications relating to the existing voice, data and database technology and architecture and particularly the signaling arrangements between different switching technologies. The trial found that the routing of wireless 911 calls had improved, but not without some problems associated with the misrouting of calls to the wrong PSAP. False call-back numbers from unsubscribed handsets also continued to plague the system. There is also a difficulty with providing reliable and up-to-date mapping software that can accurately depict cell tower boundaries and call patterns. On the other hand, there was evidence that the combination of cellsite address, call-back number and other information allowed emergency response teams to pinpoint location and, in some instances, save lives. The system also allowed PSAPs to identify abusive, frivolous or mistaken callers more effectively.

In addition to the trials, the CWTA’s 911 Committee has also addressed three wider regulatory and policy issues surrounding the provision of wireless E-911. First, there are a series of complex questions involving the liability or wireless carriers as consumer expectations about wireless technologies increase. In some Canadian provinces, landline carriers already receive some liability protection when, for examples, 911 systems do not route calls properly and damages accrue to the caller. The wireless industry has been lobbying for similar liability protections (Thorp, 2000). Second, the terms and conditions of the 911 tariffs levied by the incumbent local exchange carriers have assumed a greater importance, as the costs of 911 enhancements rise, and there are pressures to pass those costs along to consumers. Thirdly, therefore, all stakeholders see the need for an effective communication plan to educate consumers about their new choices, and about the strengths and limitations of these new services.

Although some significant privacy issues emerged during the trials, they have been of peripheral concern to the E-911 committee. The first issue is the phenomenon of the "anonymous Good Samaritan." Many people use their mobile phones to report incidents and do so on the assumption that their identity will not be revealed. PSAPs are often inundated with multiple calls from the same vehicle accident, crime scene or whatever. The Toronto report noted one example of a shooting in a bar in Scarborough. Ten 911 calls were received, nine of which were from mobile phones; only four of these callers were willing to give their call-back number. With the transmission of call-back number to a PSAP, emergency providers will have the ability to identify and track down accident or crime scene witnesses after the fact. This may change attitudes about 911 calling (Long, 2001, p. 5).

Secondly, and from the PSAPs point of view, it would make their job a good deal easier if they could have unrestricted access to the subscriber lists of the mobile phone companies. The wireless industry has resisted these requests. In one of its only interventions on E-911 questions, the CRTC has ruled, in a decision regarding Microcell, that in an emergency, subscriber records could be of value to PSAPs. But there has been no general ruling that these records should be provided as a matter of course. This position contrasts, therefore, with the requirements established under Section 5 of the US WCPSA of 1999.

The only other involvement by the CRTC has been to approve a tariff application by Bell Canada to charge all wireless service providers (WSPs) a monthly rate of $0.02 for each of its wireless working telephone numbers equipped with outward calling. The purpose of the service is to provide WSPs with the ability to access Bell’s 911 Public Emergency Reporting Service (911 PERS) network in order to transport to the designated PSAP the identification of the WSP, the location of the cell cite or sector and the call-back number. In the comments from Rogers Wireless and Microcell, similar issues concerning liability and indemnification as those articulated in the US were raised. Nevertheless, the CRTC approved, on an interim basis, Bell’s tariff application, and the associated E 911 service agreement.

At the moment, therefore, Phase I implementation of enhanced 911 services will begin in limited locations throughout Canada in 2002. Discussions about Phase II implementation and the technologically, economically and politically controversial questions of how to transmit exact location coordinates to PSAPs have only just begun. From the perspective of the emergency response service community, how the locational information is transmitted is of little relevance. Representatives now express a certain frustration that debates about an important public safety issue have been side-tracked by industry concerns about legal liabilities, competition, and technological implementation. The Toronto trial exposed the obvious limitations of Phase I implementation, and the complexities of integrating mobile networks with existing publicly switched networks. Thus, one can expect the analysis of Phase II implementation to proceed expeditiously. No doubt there will be similar debates about the relative merits of most effective locational solution as occurred in the US, and perhaps heightened pressure from the emergency response community for a more assertive role to be played by the CRTC.

Conclusions about Convergence and Divergence

Although the process of developing wireless E-911 continues in both countries, the stories to date can lead us to some interim conclusions about cross-national policy convergence and divergence. In a nutshell, it seems that quite divergent policy processes have been leading, with varying speeds, to a common conclusion in both countries, which will have significant implications for the erosion of personal privacy.

The most obvious divergence relates to the respective roles of the regulatory agencies. The FCC has been actively engaged from the outset; the CRTC has been on the sidelines.

In the United States, the process has been more transparent; in Canada more latent. A more conflictual style involving a multitude of actors in the US is contrasted with a more consensual approach involving a limited set of stakeholders in Canada. For one leading participant in the CWTA, this process has been "consistent with the Canadian approach of industry co-operation and self-regulation" (Thorp, 2000, p. 62). On the American side, by contrast, one FCC Commissioner has described the E-911 process as a "government-led effort to speed the development and deployment of a new technology prior to a commercial demand for that product."

It is, however, misleading to draw a contrast between a "mandated" approach in the US, and a "voluntary" approach in Canada. It is true that the FCC has been involved in a way that the CRTC has not. But its 1996 rules were firmly based on the earlier Consensus Agreement among wireless carriers and public safety representatives. In no sense, therefore, did the FCC impose a set of regulations that the wireless industry did not, at least in outline, support. The FCC’s role, therefore, was one of facilitator. Given the fragmentation of the industry, and the complexity of stakeholder interests, it was far more necessary for the regulator to play this role in the US, than in Canada. North of the border, the far smaller number of wireless service providers, the system of incumbent local exchange carriers, and the absence of a coherent PSAP interest group put less pressure on the CRTC to be actively involved. It was simply far easier to get the relevant stakeholders "around the table."

The divergence is also explained by conscious choices made in Canada not to follow the American lead. To be sure, the US emergency response community anticipated the problems of wireless 911 earlier than did their counterparts in Canada. But once the problems were recognized, there was a strong, if unarticulated, desire to resolve them differently. There was some inevitable emulation of US policy, in particular the distinction between, and definition of, Phase I and Phase II implementation. But on the central question concerning the role of the principal state regulator, each side of the issue drew quite negative lessons from the American experiences. And some Canadian participants even suggest that this more cautious and cooperative approach will lead, in the long run, to a more effective and consistent system of wireless E-911 in Canada than in the US. There might, therefore, be an interesting ‘hare and a tortoise’ story to be told, when all is said and done.

Whether or not the CRTC can continue to sit on the sidelines as Phase II implementation proceeds is open to question. But, to date, it has only played a very minimal role. If the main state regulator was not to play the role of mediator, it is quite natural, according to some observers of the Canadian policy style, for other actors to assume such roles. Historically, the role of Canadian political institutions is highly ambivalent. A policy style of "institutionalized ambivalence" permits room to manoeuvre in reaching mutual accommodations. But, according to Caroline Tuohy, the ability of "such a system to resolve conflict and to facilitate coherent policy development depends, however, on the structure of the interests represented by elites. More specifically, it requires that there be some form of mediating interest" (Tuohy, 1992, pp. 347-8). That the "mediating interest" in this case was, in fact, the trade and lobbying association of the wireless providers, is testament to the inherent pragmatism of the Canadian policy style. The process of elite accommodation almost has to be reinvented every time a new policy problem emerges on the national agenda.

In the US, the FCC has played the role of balancing, negotiating and compromising between the interests of the wireless industry and the public safety community. Such a role for the FCC was fairly typical, especially since the FCC had been tasked by Congress with monitoring the implementation first of 911 as the universal emergency number and second of E-911 whereby number and location information would also be conveyed to PSAPs. The FCC’s interest in wireless E-911 was a logical extension of these activities. This is also an area where the public-serving quality of the regulation is non-controversial. Few would argue that the FCC should not play a role in facilitating a more effective and efficient arrangement to deliver emergency services to the public. And, indeed, facilitating is what the FCC has done. The FCC has established a dialogue with the wireless carriers and the public safety community. It has not required industry to act in an unreasonable manner. The public safety community has served the role of watchdog – making sure that the FCC pushes industry and that the FCC’s actions are publicly noted.

At the end of the day, these different national styles may not have much impact on resulting policy outcomes. In both countries, there is a strong consensus that wireless E-911 is essential for public safety reasons, and an understanding that a necessary condition for Phase II location tracking are some network solutions that allow the provision of ANI and ALI to PSAPs. The "locational solutions" adopted will obviously be applied at varying times, and will differ from community to community. Over time, one might predict that market forces will determine the most cost-effective balance between handset and triangulation solutions. And there are several companies that are aggressively promoting these products in both Canada and the US, and claiming that they can locate mobile phone users with varying degrees of accuracy.

Therefore, despite differing approaches, styles and timing, it is obvious that the resulting policy outcomes will converge in that there will be the technical capability to pinpoint the exact location of any user of a wireless phone. To help cover the cost of that technology, operators will be keen to introduce fee-based services on the assumption that consumers might, on occasion, want to be informed about the closest Chinese restaurant, the easiest way to get to the ballpark on a Tuesday evening in the rush hour, or the nearest ATM, and so on.

We return in conclusion, therefore, to the privacy issues, and the perceived fears of unreasonable surveillance. Whether or not one believes in the principle that one has a right to make an anonymous phone call, that principle is being gradually eroded with very little debate concerning where the proper balance between privacy and social values, including public safety, should be struck. Ironically, what debate there is, arises from US rather than Canadian institutions. In other information privacy areas, Canadian policy is generally more protective of privacy than is that in the US. A more comprehensive network of public and private sector legislation in Canada, overseen by federal and provincial privacy commissioners, normally means that privacy issues are articulated earlier and with more force than in the US. But so far there has been very little public debate and virtually no involvement from the federal of provincial privacy commissioners. A newly enacted federal law for the protection of personal information in the private sector certainly regulates how wireless service providers collect, use and disclose personal information. But to date, there has been little, if any, analysis of how this legislation applies to the locational data generated through mobile phone usage. Moreover, the CWTA has yet to articulate a public position on privacy, let alone produce a code of practice for its members, something associations in other sectors have done.

By contrast, as we have seen, the US Wireless Communications and Public Safety Act (WCPSA) of 1999 requires customers to "opt-in" to secondary uses of call location information gathered from an E-911 call but authorizes disclosure of that information to public safety personnel. The WCPSA establishes special protection for call location information that is provided for purposes of assisting in the delivery of emergency services. More generally the WCPSA appears to categorize location information as customer proprietary network information (CPNI) which cannot be disclosed to third parties without a customer’s consent or statutory exception. The location information that wireless carriers collect for non-emergency purposes would appear to be thus classified as CPNI. The courts, however, have ruled that telecommunications companies cannot be required to have customers "opt-in" to uses of CPNI. The standard then for location information gained through non-emergency reasons would be "opt-out."

The status of protection for wireless location information in the US is somewhat unclear and is arguably addressed by a number of legal regimes. As David Phillips cogently argues, policies related to emergency response, law enforcement, and marketing all structure this policy environment. Several major laws including the Electronic Communications Privacy Act (ECPA), the Communications Assistance for Law Enforcement Act (CALEA), and most recently the USA PATRIOT Act all may speak to aspects of wireless location information. The next several years promise to provide lawyers for the telecommunications carriers with interesting litigation as these issues are sorted out.

Where marketing practices are concerned, there has been rather more self-regulatory activity in the US than in Canada. The New York based Mobile Marketing Association, proposed some guidelines in March 2002 to try to protect subscribers against unwanted marketing on cellular phones and other mobile devices. The CTIA has urged the FCC to protect the privacy of location information. AT&T wireless announced in February 2002 that it would display the TRUSTe privacy seal. In general there seems to be a growing awareness in the industry that consumers will tolerate unsolicited marketing on mobile devices a lot less than within other media.

In opposition to these encouraging trends, however, is the familiar problem of ‘function creep’, the tendency for new uses and applications to be found over time unrelated to the purposes for which the technology was originally designed. Winner (1977, p. 208) states the principle as follows: ‘once underway, the technological reconstruction of the world tends to continue.’ In the world of mobile telecommunications devices, the in-built capacity to locate a user, might lead to a range of pressures to use that information for law-enforcement, marketing, and other applications that are not so justifiable as that of assisting the country’s emergency response services.

References

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