Executive Briefings

Court Seems to Say Retailers Can Track Shoppers' Movements In and Outside Stores

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 of criminal activity. "We do not mean to suggest that there was no reasonable expectation of privacy because (defendant's) phone was used in the commission of a crime, or that the cell phone was illegally possessed," the Sixth Circuit ruled in its written decision. "On the contrary, 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. "We determine whether a defendant's reasonable expectation of privacy has been violated by looking at what the defendant is disclosing to the public and not what information is known to the police," the appellate court said.

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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 of criminal activity. "We do not mean to suggest that there was no reasonable expectation of privacy because (defendant's) phone was used in the commission of a crime, or that the cell phone was illegally possessed," the Sixth Circuit ruled in its written decision. "On the contrary, 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. "We determine whether a defendant's reasonable expectation of privacy has been violated by looking at what the defendant is disclosing to the public and not what information is known to the police," the appellate court said.

Read Full Article