• Consumer tracking is everywhere in 2016 -- but if you don't disclose to consumers how you are tracking their information, you could land in legal hot water.

In December, I bought a Karma — a small, portable wireless hotspot I could use for work and travel. Although that transaction concluded three months ago, ads inviting me to try the device are still following me around the Internet everywhere I go.

I have become accustomed to this as a consumer of goods and services in 2016. So accustomed to it, in fact, that my biggest question is, “When will these ads become ‘intelligent’ enough to know that I already bought this item — and thus understand that right now, I am more likely to buy accessories for this item or an entirely different item altogether?” (After all, I’m currently visiting the Karma website to check my device’s battery, data or signal, not to buy another one.)

In 2012, Verizon — yes, the mobile phone carrier — started using tracking software to push ads to specific consumers. Known as “supercookies,” this piece of technology cost Verizon $1.35 million this week when it settled a Federal Communications Commission (FCC) probe over its use of supercookies.

According to a Wall Street Journal article about the settlement, “The supercookies helped Verizon, for example, to serve ads from 1-800-Flowers.com Inc. to male Android smartphone users age 25 to 44 with incomes higher than $75,000 ahead of Valentine’s Day in 2014.”

Seems harmless enough, right?

The issue is not that Verizon used supercookies to serve these ads to a segment of its customers — it’s that Verizon was doing it for more than two years before it disclosed this practice to consumers.

Where does this happen in real estate?

It’s rare to find a website with a search function that doesn’t track some kind of consumer data. When I was shopping for a home, my agent encouraged me to use his portal for my search — and made a point to note that he couldn’t track my search activity even if he wanted to because that functionality had not been enabled on his site.

To my millennial sensibilities, this seemed like overkill. Wouldn’t it be more efficient for my agent to track what I was looking at, where I lingered and where I sped away? (There are plenty of agent apps that do this.) He might even have been able to figure out, based on my activity, that when I spent more than five minutes looking at a property, I sent an email 95 percent of the time asking to see that property.

I might not want anyone looking at my general browser history. And although I’m not sure what else Verizon’s supercookies were tracking, the idea of my cell phone carrier monitoring my behavior also isn’t very appealing to me.

But how could an agent keeping tabs on client real estate search behavior possibly amount to an invasion of privacy?

Most clients — myself included — probably wouldn’t think it does. When a real estate professional knows what I’m doing and what interests me, he or she can better serve my needs.

A line in the sand

However, I also think this case is at least the beginnings of a line in the sand that’s been drawn by the FCC: You must tell your clients what you’re doing and how they’re being tracked.


This will become increasingly important as agents use third-party tools and technologies. Last year, Andrea V. Brambila reported that the MLS listing performance tool ListTrac was planning to potentially sell agent and consumer data to third parties.

In 2015, perhaps it seemed safe to track consumer (and agent) activity without notifying either — it’s such a widespread, ubiquitous activity that most consumers must assume they’re being tracked already, right?

In 2016, I think the FCC has answered that question with this settlement: wrong.

Don’t assume anything. Tell your consumers what you are doing with their search activity and data, if you’re doing anything. Give them the opportunity to opt out.

If your third-party vendors are collecting data, disclose that to your consumers, too.

Because in this new world of tracking, it’s not always entirely clear who’s liable for protecting consumer privacy.

And we all know $1.35 million is a slap on the wrist for Verizon, but that kind of fine might make or break your business.

Email Amber Taufen

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