StorefrontBacktalk: Federal Appeals Court Green-Lights Tracking Shoppers
Through a special arrangement, presented here for discussion is a summary of a current article from StorefrontBacktalk, a site tracking retail technology, e-commerce and mobile commerce.
Attorney Mark Rasch is the former head of the U.S. Justice Department's computer crime unit and today serves as director of cybersecurity and privacy consulting at CSC in Virginia.
Retailers wrestling with how far they can legally go with tracking shoppers' movements within their stores and in neighborhoods near their stores have been given an unexpected green light from a federal appeals court. The Sixth Circuit of the U.S. Court of Appeals ruled that Americans have no right to expect privacy when it comes to their phones' location.
Although the case before the panel — which ruled August 14 — involved accused drug traffickers, the jurists made it clear that privacy was not waived simply because criminal activity was involved. "On the contrary," the Sixth Circuit ruled in its written decision, "an innocent actor would similarly lack a reasonable expectation of privacy in the inherent external locatability of a tool that he or she bought."
That's a crucial point for retailers, as was wording that people who could otherwise be seen by other people — such as when walking down an aisle at Costco or JCPenney or walking in a neighborhood near a Target or Walgreens — could not reasonably believe that their location is a Constitutionally protected secret.
The judges also suggested that shoppers' lack of awareness of how easily, and how precisely, they can be tracked is not relevant from a Constitutional privacy perspective.
This decision may make it ever so slightly easier — or potentially a wee bit more legal — for retailers to collect this type of information, even if the consumer doesn't agree. But this is not necessarily a cause for celebration. There are various restrictions on the collection and use of location data.
Shoppers are already walking around with devices that give detailed information about their whereabouts. There are primarily a few ways to extract the GPS data from the phone. You can hack the phone and extract the data. But that violates a host of federal and state laws. You can have the consumer install an application that is location aware and that shares the consumer's data with you. For this, you would likely need the consumer's knowledge and consent, in addition to a specific privacy policy about what data you are collecting, how you will use the data and a host of other data use practices.