D11.6: Survey on Mobile Identity

The legal framework for LBS in Europe 2.1 BACKGROUND

2.1 Background

Over the past decade, we have become used to surveillance techniques surrounding us. Monitoring of personal computers by governments as well as employers or just the prying Nosy Parker, camera surveillance in public places and access control mechanisms to enter – or to prevent entering – certain places, have become common examples. Issues such as security, the fight against terrorism as well as combating fraud makes the intrusion these techniques make upon our personal lives acceptable to a certain level. Off course, some legal as well as technical boundaries are in place, but there still seems to be some truth in pessimistic views announcing the increase of the unwanted gaze. Recent technological developments take monitoring to an even higher level, in a sense new techniques make it possible to track and trace products as well as persons 24/7 on a global scale.  

The processing of location data in relation to identifiable persons raises the question as to whether the existing legal framework, which should offer protection against different types of surveillance techniques, is adequate to cope with the new or intensified dilemmas that arise out of the processing of location data. In this respect the technical design of the system, including the different people involved in developing and operating the system, as well as the functionality of the system in combination with the gathering and use of the identifiable location data is of interest.  

Even though the legal regime regarding the processing of personal data, as well as the processing of traffic data and location data, is harmonised within the European Union, this does not guarantee the same level of protection within each Member State. The complexity of the European legal framework which is based on several overlapping European directives, the multitude of complicated definitions which are susceptible to multiple interpretations, and the margin of appreciation left to the Member States are all factors that make it interesting to view this topic from several jurisdictions.

In this study a comparison is made between Belgium, France, Germany and the Netherlands. These countries have been chosen as a group of countries with a close geographic connection, and with legal systems that are often similar but that do have differences, and which all have implemented the relevant legal European Directives in their laws. Because of the geographic connection and the common European market, the sharing of (personal) location data or telecommunications traffic data between them in LBS can easily become a practical issue. Therefore, it is of interest to take a closer look at the different national legal regimes in order to assess whether or not differences within these systems influence the protection of individuals with regard to the processing of their personal, traffic, and/or location data, and whether differences in implementation of the Directives impact upon the technical and commercial opportunities of providing LBS across these countries. 

From Location Based Services already in use, it becomes clear that two specific relationships are in need of special attention because of particular challenges and problems that exist with regard to the processing of location data within these relationships. One is data processing by public authorities, more specifically by law enforcement authorities, and the other is data processing by private parties, in particular by employers.