On April 23, 2015, the Federal Trade Commission (FTC) announced that Nomi Technologies (Nomi) has agreed to settle charges stemming from allegations that the company misled consumers with respect to opting out of the company’s mobile-device tracking service at retail locations. The settlement marks the FTC’s first § 5 enforcement action against a retail tracking company.

Nomi provides a customer analytics service called “Listen” to brick and mortar retailers through the use of mobile device tracking technology. As part of this service, Nomi deploys sensors to its clients’ retail locations to help track consumers’ movements through their stores. According to the FTC complaint, these sensors detect the media access control (MAC) address of mobile devices searching for WiFi networks at the locations in order to collect information about customer traffic at the locations. Notably, the FTC found that despite Nomi using a hashing technique to obfuscate the MAC address of each consumer’s mobile device, the hash still constituted a persistent unique identifier for that mobile device that allowed the company to track consumers.

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