Comments of TechFreedom and the International Center for Law & Economics, In The Matter of Nomi Technologies, Inc., FTC
Summary
“The FTC’s consent decree with Nomi Technologies is remarkable for two things. First is what it does not do, practically: empower consumers to opt-out of cell phone tracking while shopping in retail stores. Perversely, the settlement may make it less likely that consumers will be able to do so, or that they will even be notified about in-store tracking. Second is what it does do legally: confirm that the FTC has all-but abandoned the materiality requirement that lies at the heart of the Deception Policy Statement.
Our comments on this matter are embodied in the attached ICLE white paper, In the Matter of Nomi, Technologies, Inc.: The Dark Side of the FTC’s Latest Feel-Good Case (Appendix A). In general, we find troubling the FTC’s continuing use of the so-called “common law of consent decrees” — building de facto regulation through unadjudicated settlements, thus largely (if not entirely) avoiding external judicial constraint upon its discretion to apply the requirements of deception and unfairness without the appropriate analytical rigor required by judicial review. In particular, we object to the quasi-precedential standards set by this settlement: that privacy policies merit the presumption of materiality; that each sentence of a
privacy policy can merits the presumption of materiality, even taken in isolation and regardless of the specific circumstances; and that that presumption is effectively irrebuttable.”