Back in 2022, the FTC accused Kochava of engaging in unfair practices because it sold vast amounts of data obtained from smart phones, including geolocation data (where the phones were); profiles of consumers, including their marital status, ethnicity, gender identity, political association, employment; what phone apps they had and how much time they spent on them (e.g., LGBTQ+ dating apps, apps for monitoring health issues); and more. Kochava moved to dismiss and two years later the federal district court denied Kochava’s motion. See FTC v. Kochava, Inc., 715 F.Supp.3d 1319 (D. Idaho 2024). The court concluded that the FTC had adequately alleged a substantial injury–a requirement for finding conduct unfair–for two reasons: first, that Kochava had put people at an increased risk of secondary harm, such as stigma and violence. And second, that Kochava had invaded the consumers’ privacy.
On May 4, the FTC announced a proposed stipulation to settle the charges. Basically, the stipulation would bar Kochava from providing sensitive location data about consumers to others unless Kochava obtained the consumer’s express consent. Sensitive locations were defined as medical facilities, religious organizations, schools, shelters or military or law enforcement buildings and the like. But the stipulation does not bar Kochava from providing any other information. Thus, the stipulation does not forbid Kochava to sell other sensitive information, such as consumers’ personal characteristics or information about apps consumers have on their phones. I get that it’s too much to expect this administration to approve an agreement that bars disclosure of visits to places like gay bars but what good does it do to forbid disclosure of visits to hospitals for, say, cancer treatment if Kochava can still disclose that a consumer has an app on their phone to monitor their cancer treatment? This settlement still leaves people at risk of stigma and violence and will permit privacy invasions. The press release notes that the proposed stipulation was approved by a 2-0 vote of the commissioners. This is the kind of agreement we get when the FTC doesn’t have Democratic commissioners because the president fired them. I hope the district court refuses to approve the settlement.
