Evan Schuman's StorefrontBacktalk

There’s a lot of law out there: laws that regulate retailers’ behavior (e.g., can’t collect ZIP codes in California), duties to warn, duties to protect, etc. How does your new technology impact each of these laws? How are consumers likely to use and misuse the technology, and how might it impact your rights and theirs? If you can walk out with a shopping cart of goods, is it shoplifting if someone puts items into a purse or (as in the movie Animal House) shoves a London broil down their pants? When and where is the “purchase” made? Remember, as a retailer, you have to consider not only appropriate uses of the technology but also inappropriate uses.

For example, with many communities enacting “paper (plastic) bag” laws that charge for store-supplied bags, the fact that a customer puts items into a backpack or a pocket, coupled with a scanning and payment system that no longer requires a visit to the register, may no longer prove to be evidence of intent to shoplift. If you add the fact that customers may be able to pay for a product even after they leave the confines of the store, you have muddied the waters on the law of shoplifting.

You also have to consider the possibility that your employees will misuse the technology. Whenever information is collected, there will be an implied (and sometimes express) duty to protect that data, and to use that data solely for the purposes for which it was collected. Although these duties are not always apparent under U.S. law (more so under European law), it’s a good working assumption. Many new technologies create massive amounts of new data streams or slice and dice existing data streams. These create new duties and new potential liabilities.

New technologies present opportunities for discriminatory treatment of customers, which can lead to consumer dissatisfaction and litigation. For example, if your store randomly checks out the shopping baskets of people who paid with an RFID system, then you run the risk that these checks aren’t really “random” but unlawfully target particular protected classes of people. If a new technology is deployed in a discriminatory way (only in particular stores with particular kinds of clientele), this, too, can lead either to discrimination litigation or to customer unhappiness. Some discrimination is good—and indeed leads to customization that can be beneficial to the customer. Some is plain illegal. You’d better know the difference.

This just scratches the surface of some of the legal issues that can happen with new technologies. And don’t think that, as a retailer, you can sue the manufacturer of the device you deploy. Even if the company represents that its technology is “legal,” it all depends on how that tech is used and deployed—and that choice is typically up to retailers themselves. You know the argument—”guns don’t kill people.” So before you deploy, look at what could go wrong, because it probably will.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.