According to the FTC’s complaint, “Nomi uses the information it collects to provide analytics reports to its clients about the aggregate customer traffic patterns such as: [i] the percentage of consumers merely passing by the store versus entering the store; [ii] the average duration of consumers’ visits; [iii] types of mobile devices used by consumers visiting a location; [iv] the percentage of repeat customers within a given time period; and [v] the number of customers that have visited.”
The proposed settlement requires Nomi to “not misrepresent, in any manner, expressly or by implication: (A) the options through which, or the extent to which, consumers can exercise control over the collection, use, disclosure, or sharing of information collected from or about them or their computers or devices or (B) the extent to which consumers will be provided notice about how data from or about a particular consumer, computer, or device is collected, used, disclosed, or shared.” It also requires Nomi to adhere to certain record-keeping and reporting requirements.
In her own dissent, Commissioner Ohlhausen similarly argued that the FTC should have exercised prosecutorial discretion and declined to bring this action against Nomi, based on the lack of evidence of consumer harm and the potential chilling effect to other businesses. Per Commissioner Ohlhausen: “I fear that the majority’s decision in this case encourages companies to do only the bare minimum on privacy, ultimately leaving consumers worse off.”
* Nomi was acquired by Brickstream Corp. in October 2014 and the combined entity now operates as Nomi Corporation.