September 7, 2012
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.
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Discussion Questions
In a few years time, do you expect geotracking to continue to raise privacy concerns? If we assume retailers and marketers will be required to get consumers’ permission to do geotracking, do you see this as a practical marketing technique? Will geotracking become as common as the tracking of online shopper activity?
Poll
It may be my age, but I have a hard time imagining anyone saying, “sure, go ahead and track my location.” A victim of too many protest marches as a teenager.
Geotracking will continue to raise privacy issues. However, how the data is gathered, analyzed, and used will determine how strongly privacy invasion issues will be raised. According to this finding, if you want to remain anonymous, you need to leave your smartphone and tablet at home.
In a few years? Where do you live?
We live in a world today where people are concerned because there are microchips in the dogs and cats they bring home from animal shelters. Many Americans are practically paranoid now about, “big brother,” et al spying on them, just ask all those nice camo-faced, crossbow carrying guys voluntarily munching on MREs in Idaho.
We live in a world where today a drone aircraft can target an individual hiding in some Central Asian sheep herd. Come on now, how much worse will cell phones make it?
Geotracking is like any retail tool.
Used correctly to benefit consumers and nobody will make a peep — except for those shoppers on the bleeding edge of the left or right and the occasional reporter on a slow news day. Abuse the tool and there will be a Congressional investigation.
Privacy concerns will continue to be raised and debated by legislators and regulators. The tidal wave on online tracking efforts will only grow more pervasive with mobile web surfing and app usage trends continuing on the current trajectory.
Geotracking and targeting are currently used by marketers and advertising platforms online, without opt-in by consumers. How is mobile really different?
Assuming permission will be required, the rate of acceptance will be driven by the value derived by shoppers for opting in. Millennials seem to not only accept location services, but are seeking out ways to leverage the ways apps can use location to give them more value and benefits.
We are moving steadily and surely in the direction of TOTAL knowledge about everything. It is important to understand this, because the “knowledge” of everything can be electronically and digitally captured, and if it can be, it will be. Another way to say this is, “You have zero privacy anyway. Get over it!” (Scott McNealy of Sun Microsystems.) The dam has mostly already broken, it’s just that most people have only a vague understanding of the reality.
The question then is, if “we” have total knowledge of everything at all times and in all places, what are we to do with it? For the individual, it is mostly ignored — unless we want to do an online search, or something like that. For the marketer, the astute marketer will recognize that use of total information can assist shoppers to do what they want to do: buy stuff.
The question is, in an environment of total knowledge, how can the shopper be assisted. The onslaught of spam is an early result, and perhaps personal “spam” filters that keep marketers from reaching us, will become more sophisticated as the “total knowledge” cloud around us grows. But the marketer who seeks permission to get past your filter, and remains genuinely helpful to you, as a welcome “partner,” will win the future.
(But then, tracking millions of shoppers, second by second, as they move around stores, making their purchases, over the past dozen years, has given me a lot of time to think about these issues. 😉 )
I do not believe retailers can geotrack a customer or collect such information without permission as it would be clearly an invasion of privacy.
Geotracking is now very easy to implement with HTML5 and modern databases support geospatial calculations. So yes, geotracking will be very prevalent and more privacy issues will appear sooner than later.
It’s only going to raise issues if the data is not being used in consumers’ best interest. Give people what they want and they won’t complain…for the most part. There are always outliers.
As concerns about privacy continue to grow, no doubt that these types of tools will be scrutinized. At the same time, if the use of these tools results in providing customers more of what they desire, this may counter the negativity. But as privacy concerns “hit the news” so will the awareness of these methods.
Did I miss comments here on the movie, “Minority Report“? This is all just a matter of time.
I think concerns will settle down a bit over time if we continue to see few if any tangible privacy issues that are proven to impact people negatively. Even here in the wilds of Vermont and NH, there are cameras everywhere. But our local police recently wanted to put license plate readers on their cruisers, so they could be alerted if a car in their vicinity was registered to a wanted felon, or matched the description of a car involved in an amber alert. The outcry, albeit from a very, very, very (did I say “very?”) vocal minority, caused the plan to be scrapped over “privacy issues.” These days, outliers can take control of most of America pretty easily, it seems. There was a Twilight Zone episode about that once. Scary. More scary to me, at least, than “privacy issues.”
Agree with Ryan again on this topic!
Legislation will continue to play a role, but change is happening at a pace that suggests to me it will be innovation and business that help consumers manage how their data can be used rather than waiting for the law.
Privacy issues should be raising concerns right now, and such concerns will likely continue to grow. Ultimately, I believe, there will be enacted laws similar to those that now regulate the privacy of medical and prescription records. There will likely be protocols for getting permission to track. And, there is also the question, just how much do marketers need to know to make informed decisions about product, brand, promotions, etc.?
Creeptastic! I’m sure that the average shopper would be horrified to learn that their favorite retailer is tracking them in the store and on the parking lot. Do you think that retailers have a glib “this is why we’re doing this” answer to their customers?
I do believe privacy concerns will be raised going forward. Especially if this type of tracking is extended to not only the interior of the store, but to locations outside but near the store’s location. I’m not sure of how practical geotracking persons walking around a store would be…but I’m no sales expert. If minimally or completely unrestricted, geotracking will easily become as common as online shopper tracking.
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It may be my age, but I have a hard time imagining anyone saying, “sure, go ahead and track my location.” A victim of too many protest marches as a teenager.
Geotracking will continue to raise privacy issues. However, how the data is gathered, analyzed, and used will determine how strongly privacy invasion issues will be raised. According to this finding, if you want to remain anonymous, you need to leave your smartphone and tablet at home.
In a few years? Where do you live?
We live in a world today where people are concerned because there are microchips in the dogs and cats they bring home from animal shelters. Many Americans are practically paranoid now about, “big brother,” et al spying on them, just ask all those nice camo-faced, crossbow carrying guys voluntarily munching on MREs in Idaho.
We live in a world where today a drone aircraft can target an individual hiding in some Central Asian sheep herd. Come on now, how much worse will cell phones make it?
Geotracking is like any retail tool.
Used correctly to benefit consumers and nobody will make a peep — except for those shoppers on the bleeding edge of the left or right and the occasional reporter on a slow news day. Abuse the tool and there will be a Congressional investigation.
Privacy concerns will continue to be raised and debated by legislators and regulators. The tidal wave on online tracking efforts will only grow more pervasive with mobile web surfing and app usage trends continuing on the current trajectory.
Geotracking and targeting are currently used by marketers and advertising platforms online, without opt-in by consumers. How is mobile really different?
Assuming permission will be required, the rate of acceptance will be driven by the value derived by shoppers for opting in. Millennials seem to not only accept location services, but are seeking out ways to leverage the ways apps can use location to give them more value and benefits.
We are moving steadily and surely in the direction of TOTAL knowledge about everything. It is important to understand this, because the “knowledge” of everything can be electronically and digitally captured, and if it can be, it will be. Another way to say this is, “You have zero privacy anyway. Get over it!” (Scott McNealy of Sun Microsystems.) The dam has mostly already broken, it’s just that most people have only a vague understanding of the reality.
The question then is, if “we” have total knowledge of everything at all times and in all places, what are we to do with it? For the individual, it is mostly ignored — unless we want to do an online search, or something like that. For the marketer, the astute marketer will recognize that use of total information can assist shoppers to do what they want to do: buy stuff.
The question is, in an environment of total knowledge, how can the shopper be assisted. The onslaught of spam is an early result, and perhaps personal “spam” filters that keep marketers from reaching us, will become more sophisticated as the “total knowledge” cloud around us grows. But the marketer who seeks permission to get past your filter, and remains genuinely helpful to you, as a welcome “partner,” will win the future.
(But then, tracking millions of shoppers, second by second, as they move around stores, making their purchases, over the past dozen years, has given me a lot of time to think about these issues. 😉 )
I do not believe retailers can geotrack a customer or collect such information without permission as it would be clearly an invasion of privacy.
Geotracking is now very easy to implement with HTML5 and modern databases support geospatial calculations. So yes, geotracking will be very prevalent and more privacy issues will appear sooner than later.
It’s only going to raise issues if the data is not being used in consumers’ best interest. Give people what they want and they won’t complain…for the most part. There are always outliers.
As concerns about privacy continue to grow, no doubt that these types of tools will be scrutinized. At the same time, if the use of these tools results in providing customers more of what they desire, this may counter the negativity. But as privacy concerns “hit the news” so will the awareness of these methods.
Did I miss comments here on the movie, “Minority Report“? This is all just a matter of time.
I think concerns will settle down a bit over time if we continue to see few if any tangible privacy issues that are proven to impact people negatively. Even here in the wilds of Vermont and NH, there are cameras everywhere. But our local police recently wanted to put license plate readers on their cruisers, so they could be alerted if a car in their vicinity was registered to a wanted felon, or matched the description of a car involved in an amber alert. The outcry, albeit from a very, very, very (did I say “very?”) vocal minority, caused the plan to be scrapped over “privacy issues.” These days, outliers can take control of most of America pretty easily, it seems. There was a Twilight Zone episode about that once. Scary. More scary to me, at least, than “privacy issues.”
Agree with Ryan again on this topic!
Legislation will continue to play a role, but change is happening at a pace that suggests to me it will be innovation and business that help consumers manage how their data can be used rather than waiting for the law.
Privacy issues should be raising concerns right now, and such concerns will likely continue to grow. Ultimately, I believe, there will be enacted laws similar to those that now regulate the privacy of medical and prescription records. There will likely be protocols for getting permission to track. And, there is also the question, just how much do marketers need to know to make informed decisions about product, brand, promotions, etc.?
Creeptastic! I’m sure that the average shopper would be horrified to learn that their favorite retailer is tracking them in the store and on the parking lot. Do you think that retailers have a glib “this is why we’re doing this” answer to their customers?
I do believe privacy concerns will be raised going forward. Especially if this type of tracking is extended to not only the interior of the store, but to locations outside but near the store’s location. I’m not sure of how practical geotracking persons walking around a store would be…but I’m no sales expert. If minimally or completely unrestricted, geotracking will easily become as common as online shopper tracking.