Evan Schuman's StorefrontBacktalk

Then there are the legal questions. StorefrontBacktalk Legal columnist Mark Rasch has pointed out that existing wiretapping laws prohibit anyone but a mobile operator from collecting information on cell-phone calls, and even that information can’t be released without a court order. The key language that was added to wiretap laws with the USA PATRIOT Act bars capturing “signaling information reasonably likely to identify the source of a wire or electronic communication.”

“Several courts have concluded that the term ‘signaling information’ includes things like signal strength data used to determine the location of an individual,” Rasch notes.

That certainly raises legal uncertainty. It also runs contrary to what some commercial entities that aren’t mobile carriers (Apple and Google) have been doing unchallenged for years. Exactly how a judge and jury would decide on the legality of Google Maps for Android is very much up in the air.

But let’s leave all that aside. Let’s suppose that instead of posting signs telling customers they could opt out by turning off their phones, mall owners or retailers somehow could reach those customers and tell them how to opt in.

(In practical terms, that’s impossible on the fly. Those mobile signals really are anonymous—they just contain temporary identifiers that are only useful to mobile operators—who also constantly track mobile users’ locations whenever the phone is turned on. But let’s imagine there’s a practical way to do it anyway.)

Why would shoppers choose to opt into an anonymous traffic-tracking system? Not to help out mall operators who want to track overall traffic patterns. (Besides, mall operators have been able to do that sort of thing—even tracking individual customers—for years.)

And customers aren’t likely to opt in to help feed retailers information about their buying habits at other retailers—at least not if it’s put to them exactly that way. Customers think CRM is an invasion of privacy. Loyalty programs? They’re fine—just not that creepy CRM stuff.

Why would customers be willing to opt in? For the same reason those customers don’t mind if an associate looks at the bags they’re carrying from retailers they’ve already visited, and adjusts the sales pitch accordingly. In fact, that’s just good service.

A customer may end up giving an associate plenty of information anyway: where the customer has looked for a particular item, price range, what items the customer has already bought, shoe size, dress size, waist size, underwear size and other embarrassingly personal details. And customers don’t hesitate to hand over this information to the human being who’s trying to help them find the right item to buy at the right price.

That kind of information clearly goes beyond anonymous location tracking, and customers offer it up willingly because there’s a benefit: an immediately better shopping experience. It’s only seen as creepy, stalker-like information collection when there’s no human face on either end: anonymized information that goes into a corporate database, rather than an associate who’s face-to-face with a customer.

And that’s true whether the information comes from a traffic tracking system, a CRM database or the immediate observations of a really sharp associate.