@ChuckSchumer looks like he is doing the Yayo dance above right? Nah but seriously remember the cell phone tracking hardware while mall shopping I posted yesterday? Well Senator Charles Schumer is not letting it fly. Check out his statement after the jump.

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SCHUMER REVEALS: THIS HOLIDAY SEASON, NEW TECHNOLOGY COULD BE TRACKING SHOPPERS’ MOVEMENTS IN SHOPPING CENTERS THROUGH THEIR CELL PHONES; CALLS FOR MANDATORY OPT-IN BEFORE RETAILERS ARE ALLOWED TO TRACK SHOPPERS’ MOVEMENTS

JCPenney and Home Depot Are Reportedly Considering Adopting Technology That Automatically Tracks Shoppers’ Locations Through Their Cell Phones; Two Malls Adopted This Technology But Halted Implementation After Schumer Raised Concerns

Consumers’ Only Current Option To Avoid Being Tracked Is To Turn Off Cell Phones During Shopping Trips; Schumer Calls for Service to Be Opt-In and For FTC to Examine How New Technology Conforms to Broader Privacy Regulations

Schumer: Personal Cell Phones Are Just That – Personal – And Should Not be Used as Tracking Devices by Private Companies

U.S. Senator Charles E. Schumer revealed that this holiday season, retailers are beginning to adopt technology that tracks consumers’ shopping patterns through their cell phones while they patronize the mall and other retail locations. “FootPath technology” automatically tracks shoppers’ movements by monitoring the signal from their personal cell phones with antennas set up throughout malls and stores. If a shopper does not want to be tracked, their only option is to turn off their cell phone. Schumer today urged the developer of the technology to gain consent from shoppers before they begin to track their movements through their cell phones by using an opt-in mechanism. Schumer also called on the Federal Trade Commission (FTC) to explore how this new technology fits into regulatory controls dealing with consumer privacy.

“A shopper’s personal cell phone should not be used by a third party as a tracking device by retailers who are seeking to determine holiday shopping patterns,” said Schumer. “Personal cell phones are just that – personal. If retailers want to tap into your phone to see what your shopping patterns are, they can ask you for your permission to do so. It shouldn’t be up to the consumer to turn their cell phone off when they walk into the mall to ensure they aren’t being virtually tailed.”

“FootPath technology” manufactured by the British Company, Path Intelligence, allows retailers and malls to set up antennas to track cell phones through an identification number that is unique to that phone. While the technology is already in place in malls in Europe and Australia, it has never before been used in the United States.

Path Intelligence insists that shoppers’ information is kept anonymous and that consumers who don’t want to be tracked can turn off their personal cell phones when they enter the mall or a retailer. Schumer argued that if the tracking system and the phone company were hacked it could compromise personal information on shoppers’ cell phones and that requiring someone to shut off their phones in order not to be tracked is an unacceptable option, particularly when a Christmas shopping trip to the mall can lasts hours. Two U.S. malls adopted this technology but halted implementation on Friday after Schumer raised privacy concerns, and Schumer praised these malls for their actions. However, according to news reports, other retailers, including JCPenney and Home Depot, are still considering adopting the technology.

In a letter to Path Intelligence CEO Sharon Biggar, Schumer urged the company to obtain the explicit consent of shoppers’ through an opt-in policy in order to protect their privacy. In a separate letter, Schumer also called on FTC Chairman Jon Leibowitz to examine how this new technology fits in with existing consumer privacy regulations. Schumer noted that requiring consumers to opt-out by turning off their phones would be unduly burdensome for shoppers who rely on cell phones to communicate with one another and with their family, and that shoppers should not be forced to make a choice between having personal cell phones tracked by a third party and staying in touch with family.

Schumer continued, “To add insult to injury, this company says the only way to opt-out is to turn off your phone. But shoppers shouldn’t have to turn off their phones just to protect their privacy, and asking parents or children to turn off their phones when they rely on them to stay connected is simply unacceptable.”

Copies of Schumer’s letters are below.

Sharon Biggar

Chief Executive Officer

Path Intelligence Ltd,

1000 Lakeside,

North Harbour, Portsmouth, PO6 3EN

United Kingdom

Dear Ms. Biggar,

I write today to express serious concerns about reports of the deployment of your company’s “FootPath” technology to track shoppers throughout shopping malls in the United States. As I understand it, the FootPath system follows shoppers by tracking the movement of their cell phones – as identified by a unique cellphone ID. I am aware of your company’s claims that that shoppers have the opportunity to opt-out of the tracking system, and that the FootPath system does not collect any personal information about shoppers, but I am concerned that these safeguards are inadequate.

First, the only way to opt-out of being tracked by the FootPath system is to turn off one’s cell phone. That is simply unreasonable. A shopper should not have to choose between the ability to be in touch with friends and family in case of emergency and safeguarding her privacy.

Second, while I understand Path Intelligence claims to scramble unique cell phone identifiers, and not to collect personal information about a shopper including telephone number and name, I am concerned that the information Path Intelligence collects could easily fall into the wrong hands and be used to connect personally identifiable data with a shoppers geophysical location and movements. More importantly, I’m concerned that all of this is being done without the shopper’s knowledge or consent.

I therefore ask that you immediately change the notice and consent framework of your product so that customers must opt in to being tracked, and so that they have an option to keep their cellphones on and not have their location be monitored.

I firmly believe that personal cell phones are just that – personal. If malls and retailers want to tap into your phone to see what your shopping patterns are, they can ask you to do so. It shouldn’t be up to the consumer to turn their cell phone off when they walk into the mail to ensure they aren’t being virtually tailed.

Sincerely,

Charles E. Schumer

The Honorable Jon Leibowitz

Chairman

Federal Trade Commission

Dear Chairman Leibowitz,

Attached please find a letter I sent today to Path Intelligence, the makers of FootPath technologies which are beginning to be deployed in shopping centers around the United States. This technology uses a shopper’s unique cell phone ID to follow her movements throughout the shopping center. They do not ever receive affirmative consent from the consumer for this type of tracking, and the only option for a consumer to not be tracked is to turn her cellphone off.

Geophysical location data about a person is obviously highly sensitive; in this case, however, Path Intelligence claims it is being collected and tracked anonymously. I would be interested in your analysis of how technology like FootPath fits into broader US privacy rules and regulations, and whether our law and policy needs to be updated to address the new kinds of monitoring that innovative technologies allow.

I look forward to hearing from you about this important issue.

Sincerely,

Senator Charles E. Schumer

Schumer