On April 23, 2015, the Federal Trade Commission (FTC) announced that retail tracking company Nomi Technologies has agreed to settle FTC charges that it misled consumers. The FTC alleged that the company, which develops technology to allow retailers to track consumers’ movements through their stores, misled consumers by failing to uphold promises to provide a mechanism for consumers to opt-out of tracking at stores using Nomi’s tracking technology, and, in doing so, implied that consumers would be informed when retailers were using the company’s tracking services. The FTC alleged that, although the company did provide an opt-out on its website, there was no option to opt out at retailers’ locations using the service, and consumers were not informed of the tracking taking place in the stores at all. Under the settlement, Nomi will be prohibited from misrepresenting consumers’ options for controlling whether information is collected, used, disclosed or shared about them or their computers or other devices, as well as the extent to which consumers will be notified about information practices.

The Commission vote to issue the complaint and accept the proposed consent order was 3–2, with Republican Commissioners Maureen K. Ohlhausen and Joshua D. Wright dissenting. The dissenting commissioners argued that Nomi’s promise to provide in-store opt out was immaterial, because consumers could opt out online. Commissioner Olhausen stated that, as “a third party contractor collecting no personally identifiable information, Nomi had no obligation to offer consumers an opt out,” but nevertheless offered consumers this opportunity. She further wrote that she dissented due to “fear that the majority’s decision in this case encourages companies to do only the bare minimum on privacy, ultimately leaving consumers worse off.” Chairwoman Edith Ramirez, joined by Commissioners Julie Brill and Terrell McSweeney, asserted that Nomi offered an express opt-out promise, which was both false and material to consumers. The decision illustrates the importance of carefully choosing every word in a public privacy policy.