In the wake of the negative publicity that Nordstrom received from its use of mobile location analytics (MLA) in a technology trial with Euclid, Senator Charles E. Schumer (D-NY) and a group of MLA firms working with the Future of Privacy Forum have developed a “Code of Conduct” for retailers using MLA. MLA technologies use information broadcast by mobile devices—the Wi-Fi or Bluetooth MAC addresses—to provide information about the location of users of mobile devices while they are in the range of the Wi-Fi network being analyzed. While the FTC has supported the self-regulatory process and provided feedback on the Code during its development, critics of the Code from both sides have already emerged, with some claiming that the Code does not go far enough and others claiming that the requirements of the Code will not be helpful to, or wanted by, consumers, including, for example, the requirement that retailers post privacy notices with opt-out instructions at the entrances of stores. Notably, retailers were not party to the negotiations of the Code and, to our knowledge, none have, to date, agreed to adopt it.
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