July 9, 2015
If “big brother is watching you,” per George Orwell, then the FTC is watching big brother (at least in his private sector guise) and presumably keeping him in check. But what if big brother isn’t watching you, but rather is watching your cell phone location, while claiming he doesn’t know who you are and doesn’t really care? Should that be any of the FTC’s business? LeClairRyan attorneys John Hutchins & Chad Mandell make the case that the answer is no. The term for the operative concept here is “persistent identifiers,” and there are companies, like Nomi Technologies, that have made a business out of collecting data on the basis of them. A persistent identifier doesn’t attach to a person’s actual identify and is not cross-referenced to it (although in theory it could be). For example, one of Nomi’s products is a technology that tracks the behavior of shoppers in retail stores, using their cell phone location. It also recognizes the shopper – or more accurately, and to give the company its due, the shopper’s cell phone – the next time it shows up at the store. The FTC considered this technology a problem to the extent that its proprietor needed to offer the consumer the chance to opt out of it, and it claimed Nomi failed to do so. This position, according to the LeClairRyan attorneys, is overreach on the part of the FTC and an obstacle to innovation.
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