• by Wendy Davis  @wendyndavis, July 15, 2024

Federal Trade Commissioner Melissa Holyoak, a Republican who joined the agency earlier this year, is supporting the decision to charge data broker Kochava with engaging in an unfair business practice by allegedly selling smartphone users' precise geolocation data.

“When private parties like the defendants disclose precise geolocation information revealing political, medical, or religious activities, without consumers’ consent to willing purchasers, their conduct breaches that trust and jeopardizes Americans’ freedom,” Holyoak, a former solicitor general of Utah, stated Monday.

She was weighing in on an enforcement action brought by the FTC in August 2022, when the agency alleged that Kochava wrongly sells the type of location data that could expose sensitive information, such as whether people visited doctors' offices or religious institutions.

On Monday, the FTC amended its complaint to add Kochava subsidiary Collective Data Solutions as an additional defendant.

Among other allegations, the FTC said Kochava sells precise geolocation data as well as mobile advertising IDs -- unique, 32-character identifiers that persist, unless consumers proactively reset them.

Kochava countered that the data it sells isn't “personally identifiable,” and that the agency's allegations -- even if proven true -- wouldn't amount to “unfair” conduct. 

On Monday, the company stated that it “has always operated consistently and proactively in compliance with all rules and laws, including those specific to privacy.”

Shortly before the FTC sued, Kochava announced a “privacy block” feature that removes known health services locations from its marketplace.

In February, U.S. District Court Judge B. Lynn Winmill in Idaho rejected Kochava's bid to dismiss the case, writing that the agency's claim was “legally and factually plausible.”

He essentially found that the FTC's allegations, if proven true, could support the agency's claim that Kochava engaged in an unfair business practice -- meaning it engaged in activity that could cause “substantial injury” to consumers, and isn't reasonably avoidable or outweighed by benefits.

“Kochava allegedly provides its customers with vast amounts of essentially non-anonymized information about millions of mobile device users’ past physical locations, personal characteristics (including age, ethnicity, and gender), religious and political affiliations, marital and parental statuses, economic statuses, and more,” he wrote.

Holyoak noted Monday that even though Kochava allegedly sold information to private businesses, and not the government, government officials can purchase information from data brokers.

“There are examples of public-private collaboration in other settings ... suggesting that government and private-sector entities increasingly work together to leverage consumers’ private information without compulsory or formal process, such as a warrant,” she said. “For consumers to realize the benefits of technology, they must be able to trust that technology -- including tools that hold their sensitive personal data -- will remain secure from wrongful government surveillance.”