Tracking and the law

The ability to access and use mobile data is a new area of law that continues to be shaped and reshaped.

Consider a recent case in Florida, where the state supreme court ruled that obtaining cell phone location data to track a person's location or movement in real time constitutes a Fourth Amendment search and therefore requires a court-ordered warrant. The case involved an alleged drug dealer who was tracked by his mobile phone.

The Florida Supreme Court justices were struggling with contradictory decisions from other courts, including the U.S. Supreme Court. The appellate decision that was overruled, for example, found that no privacy violation existed because the accused had been tracked driving on public roads where he "could have been observed by the naked eye."

Other criminal courts have addressed the idea that anything knowingly and willingly handed over to a third party cannot be considered private. In a recent U.S. Supreme Court ruling, however, Justice Sonia Sotomayor argued that it might be necessary to reconsider the premise that a person has no reasonable expectation of privacy in information voluntarily disclosed to third parties, which she believes is an "approach ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."

The Florida case involved the drug trade, but it and other privacy rulings carry implications for perfectly legal businesses, including retail. The question for them is whether a long-standing guideline -- if I can observe you in a public setting without the assistance of technology, then your right to privacy can't stop me from doing it with technology -- is about to go the way of the dodo bird.

Suppose you go to the mall and sign onto its Wi-Fi network. Would a retailer violate your privacy by capitalizing on the knowledge that you're in the mall by sending you an ad for 25% off? It's a question that's starting to seem unsettled.

Now suppose that a shoplifter has been banned from the mall for life. How is that person protected by privacy rights? Can the mall continually scan for that person's mobile phone and send security alerts if it shows up?

Your intuitive response might be, "Yes, of course it can." But courts like consistency. If courts have ruled that police need a search warrant to track mobile signals to enforce a restraining order, other courts are likely to see it as consistent to say no to the mall that wants to track shoplifters. And, yes, this is true even though the first rulings may have been in criminal courts and the subsequent rulings are in civil courts. And I don't think companies and service providers can depend on their terms-of-service agreements to hold sway. Courts have shown zero hesitation to ignore TOS agreements if they believe the underlying conduct is being regulated in an unconstitutional way. In other words, if the court finds a constitutional or privacy violation, the TOS won't give any protection to a business.

Ultimately, the utility of the smartphone in your pocket is at stake. Many mobile capabilities today, including the highly touted Apple Pay, involve tracking. If criminal courts crack down on the ability of law enforcement to use geolocation to track drug dealers or stop murderers, how can civil courts possibly go in a different direction when tracking shoplifters or trying to sell consumers more shirts?

Before you get too attached to the new mobile capabilities you're being sold, you might want to check with your neighborhood judge. You may find that within a few years new restrictions will take the shine off a lot of those capabilities.

Evan Schuman has covered IT issues for a lot longer than he'll ever admit. The founding editor of retail technology site StorefrontBacktalk, he's been a columnist for CBSNews.com, RetailWeek and eWeek. Evan can be reached at eschuman@thecontentfirm.com and he can be followed at twitter.com/eschuman. Look for his column every other Tuesday.