Rep. Jose Serrano (D-NY-16) introduced H.R. 3629, which would require that, a "person who owns or operates a retail establishment and uses mobile device tracking technology in such establishment shall display in a prominent location in such establishment a notice that such technology is in use and that individuals can avoid being tracked by turning off their mobile devices". The Federal Trade Commission (FTC) would promulgate regulations and enforce violations as a violation of Section 5 of the FTC Act as an unfair or deceptive act or practice.

The term "mobile device" means"a mobile telephone" or "any device that uses or provides access to mobile broadband service." The term "mobile device tracking technology" means "technology that tracks the movement of an individual using the radio signal emitted by a mobile device."

Rep. Serrano filed H.R. 3629 in response to a maketing research kerfuffle last year. Path Intelligence launched a survey on Black Friday in two malls in the U.S., tracking shoppers' movements by monitoring the signals from their cell phones. It was intended to last through New Year's Day, but after Congressional intervention from Sen. Chuck Schumer (D-NY), the study was stopped. The technology used antennas set up around the shopping centers to anonymously track shoppers as they moved from store to store. This kind of research has been going on in Britain for several years. Customers were notified of the survey via small signs, and the only way for them to opt out was to turn their phones off.

According to Congressman Serrano, “When I learned about the surreptitious tracking of customers by a few malls around the nation, I knew that this practice was only being carried out because customers didn’t know it was happening. ... We have a right to go about our business in retail establishments without our movements being precisely tracked. This technology does not have to do with anti-theft procedures, but is rather a way for the establishment to gather data on our preferences. If retail establishments are forced to display a warning to customers, customers will vote with their feet and the technology will cease to be used".

Pursuant to the decision of the MRA Government Affairs Committee last month, MRA has taken the position that location privacy in such circumstances demands an opt opt with a fair and appropriate transparency of the tracking activity. We will also be recommending opt in as the best practice of the research profession.

When the only effective way a consumer can "opt out" of such location tracking is to turn off their mobile device, such is far short of an actual opt out. Therefore, MRA will lobby Rep. Serrano to amend H.R. 3629 to add a requirement for a workable opt out.