Evan Schuman's StorefrontBacktalk

Attorney Mark D. 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.

In a brief filed with the U.S. Supreme Court last month, the Department of Justice suggests that there is no expectation of privacy in location data and that the only limitations relate to the manner in which such data is collected—specifically, if it is collected from a phone company or by other means. “Look,” the DOJ essentially argues, “you are on a public street/sidewalk/office building. Anyone can see you. How can you expect that to be private?”

Even if the Supreme Court rules that customers don’t have a right to privacy in their location, we are talking about customer sensitivities more than Fourth Amendment search and seizure jurisprudence. Smartphone apps can leverage GPS or other location data and enable new sales and marketing opportunities. But consumer backlash may result in new regulation to restrict the collection and use of this information. If you fail to have clear and unambiguous privacy policies that state what you are collecting and why and then follow these policies, either the consuming public or the government will make you do it.

We have all seen enough episodes of cop shows where the two industrious gumshoes “put a tail” on a suspect—no subpoena, no warrant, no probable cause, just a couple of coffee-soaked detectives in a 1974 Chevy Impala. Supreme Court precedent seems to suggest that this is OK. If you want to take a peek over a neighbor’s fence—as long as you aren’t trespassing—it’s cool, because there is no “expectation of privacy” in an “open field.”

In fact, you can use technology to enhance your ability to see what happens in public. No Chevy Impala? No problem. You can use an airplane, a helicopter, a satellite, thermal imaging, radar or strategically positioned cameras to do the work of the two detectives. No expectation of privacy means just that—no privacy.inflatable swimming pool uk

The case before the Supreme Court involved the FBI putting an electronic device on a suspected drug dealer’s car that would collect the car’s location from GPS satellites and transmit this information in real-time to the cops. DOJ’s argument: No privacy means no warrant required, ever. Needless to say, the defendants disagree.

As a retailer, you don’t have to worry about all this cops and robbers stuff. As a shopper walks through the mall, security cameras capture his image constantly. The same is true on many urban streets and in strip malls, shopping centers or other retail outlets. It’s a relatively trivial matter to create a matrix of these cameras to track the location of shoppers.

Link that image data to the POS terminal, and you have identity and purchasing information about the guy wearing the striped shirt and the silly hat. Add facial recognition software, and you can spot the same guy a week, a month or a year later. All of that without a single smartphone app. So the starting point of any discussion is whether or not there is even any “expectation of privacy”—provided that someone is in a public or semi-public place.

Recent news reports castigated certain Web-based applications like Pandora (the Web-based music streaming app) for collecting and transmitting information about consumers without clear notification. Related flaps revolved around allegations that the iPhone was both collecting and then storing location data in a file on the phone that was not secure and was accessible to law enforcement agents. Finally, reports of security flaws and vulnerabilities in various Google Android and other apps raised the possibility of a “perfect storm” for government regulators.