ITIF, Technology Policy Institute Encourage FTC To Drop Consent Order Against Nomi Technologies

said in comments that although Nomi’s privacy policy once said a consumer could opt out of its analytics services at retail establishments, which was not accurate, an opt-out option was available on its website and Nomi “wasn’t legally required to offer either the global or the in-store opt-out.” ITIF Vice President Daniel Castro and Research Assistant Alan McQuinn said in comments that Nomi’s mistake in its privacy policy was “fairly insignificant” and there was “no evidence of consumer harm.” ITIF said the “FTC’s actions will ultimately do more harm than good.” The Application Developers Alliance agreed Nomi’s privacy policy was inaccurate, but said the “inaccuracy was de minimis and no consumer harm was alleged or apparent,” in comments to the FTC. ADA “believes that the penalty against Nomi is disproportionate and heavy-handed” and may “encourage companies to simplify their data practices and privacy policies to a degree that will always ensure their legality but will also transmit very little information to the consumer.” NetChoice Policy Counsel Carl Szabo said in comments to the FTC that the agency failed to show a violation of the FTC Act and could disincentivize businesses from giving consumers more control over their privacy. The Chamber of Commerce also submitted comments asking the agency to “vacate the proposed consent order and in its place formulate a policy to guide its decision to prosecute unfair and deceptive trade practices based on the spirit of the Small Business Regulatory Enforcement and Fairness Act of 1996 and the Commission’s own 1997 civil penalty leniency policy.” The commission voted 3-2 to issue the complaint and accept the proposed consent order, the FTC said in a news release announcing its proposed consent order with Nomi in April. Chairwoman Edith Ramirez and Commissioners Julie Brill and Terrell McSweeny issued a joint statement in favor of the order; Commissioners Maureen Ohlhausen and Joshua Wright issued separate dissenting statements. Ohlhausen noted in her dissent that Nomi is a “young company that attempted to go above and beyond its legal obligation to protect consumers but, in doing so, erred without benefiting itself,” a Nomi spokesman told us previously. “Commissioner Wright believes that Nomi did not violate the FTC Act,” the spokesman said. Nomi continually reviews its privacy policies to “ensure that they follow best practices and had already made the recommended changes in pursuit of that goal by updating our privacy policy over a year and a half ago, while we were still an early-stage startup that was less than a year old,” the spokesman said. FTC Consumer Protection Bureau Director Jessica Rich said it was “vital” for companies to “keep their privacy promises to consumers when working with emerging technologies, just as it is in any other context.” Rich said if consumers are told they have choices about their privacy, the company “should make sure all of those choices are actually available to them. Nomi’s tracking technology provided aggregated information on how many consumers passed by a store instead of going in, how long consumers stayed in the store, the types of devices used by consumers, how many repeat consumers a store had and whether the consumer had visited that store at another location, the FTC said. The FTC accepted comments until May 25 and said it would decide after the comment deadline whether to make the proposed consent order final.