On April 23, 2015, the Federal Trade Commission (“FTC”) announced a settlement with Nomi Technologies, Inc. regarding the firm’s retail tracking technology. Nomi provides technology to retailers to track consumer devices in a retail space. In its complaint, the FTC alleged that Nomi failed to offer consumers the ability to opt-out of tracking via an in-store mechanism, and that Nomi failed to provide adequate notice that tracking was taking place. The FTC alleged that Nomi failed to honor promises that it made in its privacy policy to notify consumers when a store uses Nomi’s technology to track the consumer’s movements and to provide an opt out mechanism that consumers can exercise in the store.

The FTC complaint stated that Nomi places sensors in retail locations that collect consumer device media access control (“MAC”) addresses, device type, date and time of observation, and signal strength of the device. Nomi stores this information and uses it to track devices over time. Nomi delivers reports to retailers that identify how many consumers enter the store, how long their visits last, how many repeat customers come back to the store, and when customers visit other locations of the same chain. In the settlement, Nomi agreed not to misrepresent consumers’ options for controlling when information is collected, used, or shared about them or their devices.