Prior to 2009, Sears paid consumers $10 to download certain software that would track the user's browsing history.  The FTC said that the tracking was much more more than was clearly stated by the application.  The FTC entered into a consent order with Sears, in which Sears had to provide notice and obtain express consumer consent before tracking consumers in any way.

As time, market norms, and technology moved forward, those restrictions became increasingly burdensome on Sears.  Sears petitioned the FTC to loosen them and allow Sears to compete on a more even playing field consistent with other competitors in the marketplace.  The FTC agreed and inserted a number of exclusions into the prior consent order, including that notice and consent are not required for standard tracking like customer use of an application, whether the application is working, and how the application is configured.