文献信息：
文献标题：The New Retail Experience and Its Unaddresd Privacy Concerns: How RFID and Mobile Location Analytics are Collecting Customer Information（新零售体验及其未解决的隐私问题：无线射频识别和移动位置分析是如何收集客户信息的）
国外作者：Ava Farshidi
文献出处：《Journal of Law, Technology and the Internet》,2016,7:15-38 字数统计：英文2574单词，13291字符；中文4313汉字
外文文献：
The New Retail Experience and Its Unaddresd Privacy Concerns: How RFID and Mobile Location Analytics are
Collecting Customer Information
INTRODUCTION
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Americans love to shop. Shoppers can shop in any platform, at any time, and anywhere to get just about anything they want. The fashion industry has been at the forefront of customizing the customer experience, and the emergence of omnichannel has shown the significance of connecting brick and mortar stores with digital means of shopping through the Internet and mobile apps. The result of incread technology to facilitate the shopping experience requires the collection of data. Where there is collection of data, there are privacy concerns to be addresd. Pam Dixon, the executive director of the World Privacy Forum, has remarked that the media has focud on companies’ tracking through Internet browrs, but the public is, for the most part, unaware of how brick and mortar stores are tracking them. She comments, “This is an entire business model that has sprung up that I think maybe three people in the entire country know about outside the industry.” Some of the technology that
小球球 我爱你fashion retailers are now using is so foreign to legal regulators that the privacy implications have not yet been clearly confronted. Throughout the shopping evolution we have gone from brick and mortar to online to eStore—the latest shift in the shopping experience merging technology and the brick and mortar space.
I.BACKGROUND
1.Brick and Mortar Stores Prior to the Wave of Online Shopping
The biggest concern customers had in brick and mortar stores prior to the emergence of online shopping was when making their purcha at the point-of-sale. When a customer swipes a credit card at a reader to make a purcha, the machine reads the magnetic strip holding the customer’s personal information. The ea of fraudsters acquiring credit card data was most apparent to consumers in the wake of two major retailers being hacked. In November 2013, Target revealed that up to 110 million customers were affected by malware found from their point-of-sale devices giving unauthorized access to payment card data. Weeks later, Neiman Marcus acknowledged that 1.1 million of its customers were also affected by malicious software. While data breaches are unfortunately common, the amount of damage done in the instances was unique becau of the large number of people that were affected by the breaches.
2. eCommerce and Mobile Apps
When customers go on any webpage, they are traced by tiny files and programs called “cookies.” There are two types of cookies: first-party and third-party. First-party cookies are collected by the direct website that the ur is browsing on. Third-party cookies track a customer’s movement throug
hout all sites affiliated with the track company, and the company can collect information about the person to create a profile on the customer. Third-party cookies are usually the greater privacy concern. Once the cookies pick up the data, the data is ud in algorithms that can help further connect the personal information that is collected with probable behavior data such as income, geographic location, and education. This information can not only help them further personalize ads, correspondence, and offers, but it also can put
together independently anonymous information to identify an individual.Companies like Amazon u this data as a recommendation mechanism by monitoring everything that their customers do transactionally and even noting information on the purchas that are not actually made. Even though the consumer is providing a great amount of information, they are getting more accurate recommendations from Amazon.
3.eStores
a.RFID
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Beginning around 2012, retail stores began incorporating radio frequency identification (“RFID”) tags into their products. RFID is ud to replace bar codes to help in inventory management. RFID tags a
re small electronic devices ud to receive and transmit information from radio frequencies. Using this technology makes the distribution of products and materials more beneficial by keeping track of inventory and limiting costs, which rves as a mutual benefit to consumers as well as business. Beyond attaching to individual garments, RFID tags can be attached to materials ud for shipping that can help let a manufacturer know where the products are until they reach the retailer. A benefit to RFID tags is that they are reusable and can be removed from the garment at checkout, which is cost effective for retailers. By providing accurate information on the availability of inventory and how to avoid stock-outs, RFID technology elevates the modern day shopper’s experience that expects to find what they want when they want it. The technology takes some of the responsibility away from the employees so they can better assist customers. Additionally, it assists retailers and manufacturers to better rve their retail spaces by looking at shopping patterns to make their supply chain more efficient. It ems to be
a win for both the consumer and the manufacturer.tonsion
b.Customer Tracking
Technology ud inside stores is not only tracking the goods, it is tracking every movement people in
side and outside of the store are making. The technologies generally u the Wi-Fi on a mobile device to connect to a customer, but sometimes the customer does not even have to connect to the store’s rver to be tracked. One of the most commonly ud trackers is Euclid Analytics (“Euclid”). Euclid has been
described as the “Google Analytics for the real world” and detects foot traffic within retail locations. Euclid connects to shoppers’ smartphones through Wi-Fi or Bluetooth technology and collects the mobile device’s media access control (“MAC”) address. MAC address are unique to each phone, and each address is stored to the Euclid rver. Customers have the option to opt- out of the data collection on their phones and retailers using the technology are contractually and legally obligated to make shoppers aware of the u of this technology in their stores. In fact, Euclid provides retailers with a recommended sign to u in their retail space. The information collected about a consumer, known as Mobile Location Analytics, tells the retailer how long a customer is in each part of the store and where they choo to brow. Not only does that allow a retailer to strategize what products are more popular, it also allows the retailer to predict when the store will be busiest and how to u its sales staff more efficiently. Additionally, Euclid can track the number of people that walk by a store window and how long they stand in front of the window before making th
e decision to go inside or continue walking. This information is beneficial to a retailer to be able to adjust its window display to be more enticing to more customers.
II.THERE IS VERY LITTLE REGULATION CONCERNING THE COLLECTION OF DATA IN RETAIL STORES.
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The amount of data that is collected by eStores sparks privacy concerns for consumers. Traditionally, privacy law has been thought of as four major torts: (i) unreasonable intrusion upon the clusion of another; (ii) appropriation of the other’s name or likeness; (iii) unreasonable publicity given to the other’s private life; or (iv) publicity that unreasonably places the other in a fal light before the public. However, privacy rights are protected by state law, and not all states recognize all four torts. Out of the four torts, intrusion upon the clusion of others embodies the concerns with the information collected by retail technologies. Intrusion upon clusion is an intrusion into a person’s private matters that are not of public concern, and this intrusion must be considered highly offensive by the reasonable person to be actionable.
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A major privacy concern with the gathering of customer information by retailers is that they are collecting highly nsitive person information known as personal identifiable information (“PII”). The
United States Department of Labor defines PII as “any reprentation of information that permits the identity of an individual to whom the information applies to be reasonably inferred by either direct or indirect means.” This information can be isolated to identify an individual, such as a name, address, social curity number, or phone number, or it can be a combination of elements that help to isolate a person among a group, such as gender, race, and geographic location. Unauthorized access to this information is known as a breach of curity and risks the harm of releasing PII. Laws relating to PII are implemented in each state. While many are the same, some are stricter than others. California was the first to enact a data breach notification law in 2002, which required retailers to notify customers if there was a data breach that jeopardized their PII. A delay or lack of disclosure would lead to criminal investigation. Almost all states now have some sort of notification law in place.
The Federal Trade Commission (“FTC”) is permitted to regulate unfair methods of competition and unfair and deceptive acts in commerce. The FTC has explained its approach to data curity is bad on a reasonableness standard. The FTC t out four major guidelines for companies to follow in their collection of data: (i) knowing what information they have and who has access to it; (ii) limiting the collection and retention of information to what is necessary; (iii) using cure methods to protect the information; and (iv) disposing information when it is no longer necessary. Very few cas
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have been litigated with the FTC over data curity and unfair practices. Currently, Wyndham Hotels & Resorts, LLC is litigating in the Third Circuit over the FTC’s ability to bring an unfairness claim for data curity. The outcome of that decision could impact how data curity is regulated in the United States as well as potentially leading to more FTC enforcement than before. To handle possible information leaks, the FTC has guides for business to help protect customer information and avoid curity breaches and identity theft. Additionally, under the Fair Credit Reporting Act, business that accept credit or debit cards are required to
truncate or eliminate all but the last five digits of the card number on the customer’s receipt at the point-of-sale.
III.ESTORES SHOULD DEVELOP SELF-REGULATORY SCHEMES TO ADDRESS PRIV ACY CONCERNS WITH THE CUSTOMER DATA THAT IS COLLECTED观点用英语怎么说
Lawmakers are discussing the changes happening in the retail space. Senator Charles Schumer has called retailer tracking of buyers “intrusive and unttling.” While the FTC regulates deceptive or unfair conduct that companies engage in, the FTC has yet to bring any enforcement actions against a fashion company for tracking. Without any regulatory or legal precedent it is difficult to determine if
companies are crossing the line with the collection of this data. This pos two major questions: (i) Does the definition of PII need to be expanded? and (ii) Are customers ready to accept the technological capabilities of the shopping enhancing rvices?
The California courts have ud a wider interpretation of PII, but it ems that PII may need to be expanded to less specific information that can still be ud to identify people. Data collection, particularly by mobile location analytics systems, are allowed in the practices becau they are not collecting what has been defined as traditional PII. Non-PII can be pieced together with other information to personalize the information and connect it to a particular individual. A new approach to PII has been explained as information that has a good possibility of future identification.
Even though some customers have heightened awareness around the information that is collected about them, customers have also become accustomed to having a highly personalized shopping experience and expect the types of rvices from their retailers. Some customers are willing to give up their personal information for the perks that companies will give them, even if they are unaware of how the information is being collected. Consumers are willing to trade their personal information if it means they will be rewarded with exclusive perks and coupons. A Seattle bad company developed a mobile app that gave customers cash and gift cards in exchange for informati
on about where the customer was in a store. The app has gained a
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