A recently enacted New York state law requires businesses that set prices algorithmically to disclose customers’ personal data. According to the law, personal data includes any data that can be “associated or reasonably linked, directly or indirectly, with a specific consumer or device.” The law does not require businesses to clearly disclose what information about a person or device is being used or how each piece of information affects the final price the customer sees. The law includes a provision for the use of location data to calculate cab or rideshare fares based on mileage and trip duration, but not for other purposes.
The law also requires that the disclosure be “clear and specific.” Target’s disclosure isn’t the easiest to find — a customer has to click the “i” icon next to an item’s price, then scroll to the bottom of the pop-up. In the past, courts have held that it would not always be reasonable to assume that a customer will click on a “more information” link when it is not required.
Target did not respond to questions about the price difference or say what personal data was used according to the disclosures.
For years, Target has had a practice of setting different prices for different locations. In 2021, the Huffington Post found that Target’s website changes prices depending on the store location the user is connected to, and a company spokesperson told reporters at the time that its online prices “reflect the local market.” In 2022, the company settled a lawsuit filed by district attorneys of several California counties alleging that it used geofencing to automatically update prices listed in customers’ Target apps. Today, when you visit Target’s website, it also automatically links you to nearby stores, which you can change in the website’s settings. (Target did not answer questions about how it decided which brick-and-mortar store a website visitor would automatically associate with.)
Apart from eggs, the price of toilet paper also seems to vary depending on which store the customer is associated with. For those whose store is in Flushing, Queens, a six-pack of Mega Charmin Ultra Strong Septic-Safe Toilet Paper is $8.69. Those with the Tribeca location are shown $8.99 for the same listing.
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