NY Unfairness Letters from Samuel Levine and Hannah Garden-Monheit

UNITED STATES OF AMERICA
Federal Trade Commission
WASHINGTON, D.C. 20580
Bureau of Consumer Protection
Office of Policy Planning
February 26, 2024
The Honorable Kathy Hochul
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
Dear Governor Hochul:
We write this letter as the heads of the Federal Trade Commission’s Bureau of Consumer
Protection and Office of Policy Planning, the FTC office that provides advocacy and submits
filings supporting competition and consumer protection principles to state legislatures, regulatory
boards, and officials.
We understand that New York is considering legislation that would add unfairness to New
York’s existing laws prohibiting deceptive practices.1 The Federal Trade Commission (FTC or
Commission) has enforced an unfairness prohibition for nearly ninety years. This authority has
enabled the Commission to bring some of its most important cases protecting consumers. These
cases protect the public from a vast range of predatory and exploitative business practices,
including unauthorized charges,2 lax data security,3 sale of sensitive personal data,4 dark patterns
1 We understand that New York is also considering adopting a prohibition on abusiveness. Although the Federal
Trade Commission does not itself enforce such a prohibition, our partners at the Consumer Financial Protection
Bureau have done so for more than a decade, to the benefit of consumers and honest businesses. We further note that
New York has successfully utilized the provision of the Dodd-Frank Act that empowers state agencies to directly
enforce that law’s prohibition on unfair, deceptive, or abusive conduct against certain covered persons. See, e.g.,
Press Release, NYDFS Reaches Agreement on Final Consent Judgment with Condor Capital, Obtaining Full
Restitution for Consumers Under Dodd-Frank Lawsuit (Dec. 19, 2014),
https://dfs.ny.gov/reports and publications/press releases/pr1412191.
2 E.g., FTC v. Amazon.com, Inc., 71 F. Supp. 3d 1158, 1167 (W.D. Wash. 2014) (denying motion to dismiss
unfairness claims based on permitting children to make in-app purchases without parental authorization); FTC v.
Inc21 Corp., 745 F. Supp. 2d 975 (N.D. Cal. 2010) (concluding that defendants unfairly “crammed” consumers’
phone bills with bogus charges).
3 E.g., FTC v. Wyndham Worldwide Corp., 799 F.3d 236, 248 (3d Cir. 2015).
4 See In re X-Mode Social, Inc., FTC File No. 2123038 (alleging unfair sale of consumer data, without consumers’
knowledge or consent, that revealed visits to locations associated with medical care, reproductive health, religious
worship, mental health, temporary housing, and addiction recovery); In re InMarket Media, LLC, FTC File No.
2023088 (alleging unfair collection, use, and retention of consumer data, without disclosing intended uses, that
revealed people’s day-to-day movements).

that frustrate consumer choice and fuel junk fees,5 and discriminatory lending practices.6 The
FTC’s unfairness authority has also been a key tool for stopping upstream actors, like reckless
payment processors, from helping fraudsters deceive consumers.7
The FTC’s unfairness authority has been particularly important in addressing the challenges
consumers face in our digital economy, often posed by technologies that operate behind the
scenes. Consider just one emerging trend—artificial intelligence, or AI. The FTC recently
brought an unfairness complaint charging Rite-Aid with using error-prone AI facial recognition
technology that wrongly identified law-abiding consumers, particularly women and persons of
color, as shoplifters. The historic proposed settlement reached with the company bans the use of
facial recognition surveillance for five years and requires stringent safeguards to prevent
discrimination and other harms—setting an important new benchmark for ensuring that AI is
deployed responsibly, or not at all.8 This action relied entirely on the FTC’s unfairness authority,
demonstrating the importance of unfairness authority as a guardrail against technologies being
deployed in harmful ways.
AI is not the only emerging area where unfairness is a vital tool in protecting consumers’ civil
rights and civil liberties. For example, the unchecked collection and sale of a staggering amount
of consumer data is threatening Americans’ religious liberties, reproductive freedoms, and ability
to organize, protest, and otherwise exercise their civil rights.9 The FTC recently brought two
major enforcement actions against data brokers charging that they unfairly collected or sold
consumers’ sensitive geolocation data. Thanks in part to the FTC’s unfairness authority, the
Commission was able to secure orders that did not simply require better disclosures around the
sale of consumers’ sensitive location data (i.e., stopping deception)—rather, they prohibited the
practice altogether.
Finally, we understand that New York is considering creating a private right of action to
complement enforcement by the Attorney General. Although the FTC Act does not include its
5 E.g., Epic Games, Inc., FTC File No. 1923203 (alleging that Epic Games used dark patterns to trick users of its
Fortnite game into unauthorized charges); Compl., FTC v. Amazon, No. 2:23-cv-0932 (W.D. Wa. June 21, 2023)
(alleging unfair use of “dark patterns” to trick consumers into automatically renewing Prime subscriptions).
6 See Compl., FTC v. Passport Auto, No. e 8:22-cv-02670-GLS (D. Md. Oct. 18, 2022) (alleging unfair
discrimination against Black and Latino customers by imposing higher costs than on similarly situated non-Latino
White customers).
7 See FTC v. Wells, No. 2:06-cv-01644 (D. Nev. 2009), aff’d 385 Fed. Appx. 712 (9th Cir. 2010); Compl., FTC v.
Revenue Wire, No. 1:20-cv-01032-RJL (D.D.C. April 21, 2020).
8 See In re Rite Aid Corporation, FTC File No. 0723121.
9 For a discussion of the challenges related to the data market and the related threats to civil liberties and civil rights,
see Sam Levine, Surveillance in the Shadows – Third-Party Data Aggregation and the Threat to Our Liberties
https://www ftc.gov/news-events/news/speeches/remarks-bcp-director-samuel-levine-2023-consumer-data-industry-
association-law-industry-conference (Sept. 21, 2023) (delivered at the 2023 Consumer Data Industry Association
Law & Industry Conference).

own private right of action, many state consumer laws do, and private attorneys general have
been force multipliers in protecting consumers from unfair practices.10
We hope this information is valuable to you as you consider legislation in this area. Please do not
hesitate to reach out if there is any assistance we can provide as you consider this legislative
reform.
Very Truly Yours,
Samuel Levine
Director
Bureau of Consumer Protection
Hannah Garden-Monheit
Director
Office of Policy Planning
Identical letters sent to:
The Honorable Carl E. Hestie, Speaker, New York State Assembly
The Honorable Crystal D. Peoples-Stokes, Majority Leader, New York State Assembly
The Honorable William A. Barclay, Minority Leader, New York State Assembly
The Honorable Nily Rozic, Chair of the Committee on Consumer Affairs and Protection, New
York State Assembly
The Honorable Andrea Stewart-Cousins, President Pro Tempe and Majority Leader, New York
State Senate
The Honorable Robert G. Ortt, Minority Leader, New York State Senate
The Honorable Kevin Thomas, Chair of the Committee on Consumer Protection, New York
State Senate
10 Because of its important role in protecting the public, the vast majority of states have adopted unfairness
authority. It bears noting that many states have not adopted the FTC’s specific test for unfairness. See David L. Belt,
Should the FTC’s Current Criteria for Determining "Unfair Acts or Practices" Be Applied to State ‘Little FTC
Acts’? 9 ANTITRUST SOURCE 6 (2010).

UNITED STATES OF AMERICA
Federal Trade Commission
WASHINGTON, D.C. 20580
Bureau of Consumer Protection
Office of Policy Planning
February 26, 2024
The Honorable Andrea Stewart-Cousins 	The Honorable Robert G. Ortt
President Pro Tempore and Majority Leader, 	Minority Leader,
New York State Senate 	New York State Senate
Capitol Building, Room 330 	Capitol Building, Room 315
Albany, NY 12247 	Albany, NY 12247
The Honorable Kevin Thomas
Chair, Committee on Consumer Protection,
New York State Senate
Legislative Office Building, Room 947
Albany, NY 12247
Dear President Pro Tempore and Majority Leader Stewart-Cousins, Minority Leader Ortt, and
Senator Thomas:
We write this letter as the heads of the Federal Trade Commission’s Bureau of Consumer
Protection and Office of Policy Planning, the FTC office that provides advocacy and submits
filings supporting competition and consumer protection principles to state legislatures, regulatory
boards, and officials.
We understand that New York is considering legislation that would add unfairness to New
York’s existing laws prohibiting deceptive practices.1 The Federal Trade Commission (FTC or
Commission) has enforced an unfairness prohibition for nearly ninety years. This authority has
enabled the Commission to bring some of its most important cases protecting consumers. These
cases protect the public from a vast range of predatory and exploitative business practices,
1 We understand that New York is also considering adopting a prohibition on abusiveness. Although the Federal
Trade Commission does not itself enforce such a prohibition, our partners at the Consumer Financial Protection
Bureau have done so for more than a decade, to the benefit of consumers and honest businesses. We further note that
New York has successfully utilized the provision of the Dodd-Frank Act that empowers state agencies to directly
enforce that law’s prohibition on unfair, deceptive, or abusive conduct against certain covered persons. See, e.g.,
Press Release, NYDFS Reaches Agreement on Final Consent Judgment with Condor Capital, Obtaining Full
Restitution for Consumers Under Dodd-Frank Lawsuit (Dec. 19, 2014),
https://dfs.ny.gov/reports and publications/press releases/pr1412191.

including unauthorized charges,2 lax data security,3 sale of sensitive personal data,4 dark patterns
that frustrate consumer choice and fuel junk fees,5 and discriminatory lending practices.6 The
FTC’s unfairness authority has also been a key tool for stopping upstream actors, like reckless
payment processors, from helping fraudsters deceive consumers.7
The FTC’s unfairness authority has been particularly important in addressing the challenges
consumers face in our digital economy, often posed by technologies that operate behind the
scenes. Consider just one emerging trend—artificial intelligence, or AI. The FTC recently
brought an unfairness complaint charging Rite-Aid with using error-prone AI facial recognition
technology that wrongly identified law-abiding consumers, particularly women and persons of
color, as shoplifters. The historic proposed settlement reached with the company bans the use of
facial recognition surveillance for five years and requires stringent safeguards to prevent
discrimination and other harms—setting an important new benchmark for ensuring that AI is
deployed responsibly, or not at all.8 This action relied entirely on the FTC’s unfairness authority,
demonstrating the importance of unfairness authority as a guardrail against technologies being
deployed in harmful ways.
AI is not the only emerging area where unfairness is a vital tool in protecting consumers’ civil
rights and civil liberties. For example, the unchecked collection and sale of a staggering amount
of consumer data is threatening Americans’ religious liberties, reproductive freedoms, and ability
to organize, protest, and otherwise exercise their civil rights.9 The FTC recently brought two
2 E.g., FTC v. Amazon.com, Inc., 71 F. Supp. 3d 1158, 1167 (W.D. Wash. 2014) (denying motion to dismiss
unfairness claims based on permitting children to make in-app purchases without parental authorization); FTC v.
Inc21 Corp., 745 F. Supp. 2d 975 (N.D. Cal. 2010) (concluding that defendants unfairly “crammed” consumers’
phone bills with bogus charges).
3 E.g., FTC v. Wyndham Worldwide Corp., 799 F.3d 236, 248 (3d Cir. 2015).
4 See In re X-Mode Social, Inc., FTC File No. 2123038 (alleging unfair sale of consumer data, without consumers’
knowledge or consent, that revealed visits to locations associated with medical care, reproductive health, religious
worship, mental health, temporary housing, and addiction recovery); In re InMarket Media, LLC, FTC File No.
2023088 (alleging unfair collection, use, and retention of consumer data, without disclosing intended uses, that
revealed people’s day-to-day movements).
5 E.g., Epic Games, Inc., FTC File No. 1923203 (alleging that Epic Games used dark patterns to trick users of its
Fortnite game into unauthorized charges); Compl., FTC v. Amazon, No. 2:23-cv-0932 (W.D. Wa. June 21, 2023)
(alleging unfair use of “dark patterns” to trick consumers into automatically renewing Prime subscriptions).
6 See Compl., FTC v. Passport Auto, No. e 8:22-cv-02670-GLS (D. Md. Oct. 18, 2022) (alleging unfair
discrimination against Black and Latino customers by imposing higher costs than on similarly situated non-Latino
White customers).
7 See FTC v. Wells, No. 2:06-cv-01644 (D. Nev. 2009), aff’d 385 Fed. Appx. 712 (9th Cir. 2010); Compl., FTC v.
Revenue Wire, No. 1:20-cv-01032-RJL (D.D.C. April 21, 2020).
8 See In re Rite Aid Corporation, FTC File No. 0723121.
9 For a discussion of the challenges related to the data market and the related threats to civil liberties and civil rights,
see Sam Levine, Surveillance in the Shadows – Third-Party Data Aggregation and the Threat to Our Liberties
https://www ftc.gov/news-events/news/speeches/remarks-bcp-director-samuel-levine-2023-consumer-data-industry-
association-law-industry-conference (Sept. 21, 2023) (delivered at the 2023 Consumer Data Industry Association
Law & Industry Conference).

major enforcement actions against data brokers charging that they unfairly collected or sold
consumers’ sensitive geolocation data. Thanks in part to the FTC’s unfairness authority, the
Commission was able to secure orders that did not simply require better disclosures around the
sale of consumers’ sensitive location data (i.e., stopping deception)—rather, they prohibited the
practice altogether.
Finally, we understand that New York is considering creating a private right of action to
complement enforcement by the Attorney General. Although the FTC Act does not include its
own private right of action, many state consumer laws do, and private attorneys general have
been force multipliers in protecting consumers from unfair practices.10
We hope this information is valuable to you as you consider legislation in this area. Please do not
hesitate to reach out if there is any assistance we can provide as you consider this legislative
reform.
Very Truly Yours,
Samuel Levine
Director
Bureau of Consumer Protection
Hannah Garden-Monheit
Director
Office of Policy Planning
Identical letters sent to:
The Honorable Kathy Hochul, Governor, New York State
The Honorable Carl E. Hestie, Speaker, New York State Assembly
The Honorable Crystal D. Peoples-Stokes, Majority Leader, New York State Assembly
The Honorable William A. Barclay, Minority Leader, New York State Assembly
The Honorable Nily Rozic, Chair of the Committee on Consumer Affairs and Protection, New
York State Assembly
10 Because of its important role in protecting the public, the vast majority of states have adopted unfairness
authority. It bears noting that many states have not adopted the FTC’s specific test for unfairness. See David L. Belt,
Should the FTC’s Current Criteria for Determining "Unfair Acts or Practices" Be Applied to State ‘Little FTC
Acts’? 9 ANTITRUST SOURCE 6 (2010).
t t
1 f.
r

UNITED STATES OF AMERICA
Federal Trade Commission
WASHINGTON, D.C. 20580
Bureau of Consumer Protection
Office of Policy Planning
February 26, 2024
The Honorable Carl E. Hestie 	The Honorable William A. Barclay
Speaker, New York State Assembly 	Minority Leader, New York State Assembly
Legislative Office Building, Office 932 	Legislative Office Building, Office 933
Albany, NY 12248 	Albany, NY 12248
The Honorable Crystal D. Peoples-Stokes 	The Honorable Nily Rozic
Majority Leader, New York State Assembly 	Chair, Committee on Consumer Affairs and
Legislative Office Building, Office 936 	Protection, New York State Assembly
Albany, NY 12248 	Legislative Office Building, Office 941
Albany, NY 12247
Dear Speaker Hestie, Majority Leader Peoples-Stokes, Minority Leader Barclay, and
Assemblywoman Rozic:
We write this letter as the heads of the Federal Trade Commission’s Bureau of Consumer
Protection and Office of Policy Planning, the FTC office that provides advocacy and submits
filings supporting competition and consumer protection principles to state legislatures, regulatory
boards, and officials.
We understand that New York is considering legislation that would add unfairness to New
York’s existing laws prohibiting deceptive practices.1 The Federal Trade Commission (FTC or
Commission) has enforced an unfairness prohibition for nearly ninety years. This authority has
enabled the Commission to bring some of its most important cases protecting consumers. These
cases protect the public from a vast range of predatory and exploitative business practices,
1 We understand that New York is also considering adopting a prohibition on abusiveness. Although the Federal
Trade Commission does not itself enforce such a prohibition, our partners at the Consumer Financial Protection
Bureau have done so for more than a decade, to the benefit of consumers and honest businesses. We further note that
New York has successfully utilized the provision of the Dodd-Frank Act that empowers state agencies to directly
enforce that law’s prohibition on unfair, deceptive, or abusive conduct against certain covered persons. See, e.g.,
Press Release, NYDFS Reaches Agreement on Final Consent Judgment with Condor Capital, Obtaining Full
Restitution for Consumers Under Dodd-Frank Lawsuit (Dec. 19, 2014),
https://dfs.ny.gov/reports and publications/press releases/pr1412191.

including unauthorized charges,2 lax data security,3 sale of sensitive personal data,4 dark patterns
that frustrate consumer choice and fuel junk fees,5 and discriminatory lending practices.6 The
FTC’s unfairness authority has also been a key tool for stopping upstream actors, like reckless
payment processors, from helping fraudsters deceive consumers.7
The FTC’s unfairness authority has been particularly important in addressing the challenges
consumers face in our digital economy, often posed by technologies that operate behind the
scenes. Consider just one emerging trend—artificial intelligence, or AI. The FTC recently
brought an unfairness complaint charging Rite-Aid with using error-prone AI facial recognition
technology that wrongly identified law-abiding consumers, particularly women and persons of
color, as shoplifters. The historic proposed settlement reached with the company bans the use of
facial recognition surveillance for five years and requires stringent safeguards to prevent
discrimination and other harms—setting an important new benchmark for ensuring that AI is
deployed responsibly, or not at all.8 This action relied entirely on the FTC’s unfairness authority,
demonstrating the importance of unfairness authority as a guardrail against technologies being
deployed in harmful ways.
AI is not the only emerging area where unfairness is a vital tool in protecting consumers’ civil
rights and civil liberties. For example, the unchecked collection and sale of a staggering amount
of consumer data is threatening Americans’ religious liberties, reproductive freedoms, and ability
to organize, protest, and otherwise exercise their civil rights.9 The FTC recently brought two
2 E.g., FTC v. Amazon.com, Inc., 71 F. Supp. 3d 1158, 1167 (W.D. Wash. 2014) (denying motion to dismiss
unfairness claims based on permitting children to make in-app purchases without parental authorization); FTC v.
Inc21 Corp., 745 F. Supp. 2d 975 (N.D. Cal. 2010) (concluding that defendants unfairly “crammed” consumers’
phone bills with bogus charges).
3 E.g., FTC v. Wyndham Worldwide Corp., 799 F.3d 236, 248 (3d Cir. 2015).
4 See In re X-Mode Social, Inc., FTC File No. 2123038 (alleging unfair sale of consumer data, without consumers’
knowledge or consent, that revealed visits to locations associated with medical care, reproductive health, religious
worship, mental health, temporary housing, and addiction recovery); In re InMarket Media, LLC, FTC File No.
2023088 (alleging unfair collection, use, and retention of consumer data, without disclosing intended uses, that
revealed people’s day-to-day movements).
5 E.g., Epic Games, Inc., FTC File No. 1923203 (alleging that Epic Games used dark patterns to trick users of its
Fortnite game into unauthorized charges); Compl., FTC v. Amazon, No. 2:23-cv-0932 (W.D. Wa. June 21, 2023)
(alleging unfair use of “dark patterns” to trick consumers into automatically renewing Prime subscriptions).
6 See Compl., FTC v. Passport Auto, No. e 8:22-cv-02670-GLS (D. Md. Oct. 18, 2022) (alleging unfair
discrimination against Black and Latino customers by imposing higher costs than on similarly situated non-Latino
White customers).
7 See FTC v. Wells, No. 2:06-cv-01644 (D. Nev. 2009), aff’d 385 Fed. Appx. 712 (9th Cir. 2010); Compl., FTC v.
Revenue Wire, No. 1:20-cv-01032-RJL (D.D.C. April 21, 2020).
8 See In re Rite Aid Corporation, FTC File No. 0723121.
9 For a discussion of the challenges related to the data market and the related threats to civil liberties and civil rights,
see Sam Levine, Surveillance in the Shadows – Third-Party Data Aggregation and the Threat to Our Liberties
https://www.ftc.gov/news-events/news/speeches/remarks-bcp-director-samuel-levine-2023-consumer-data-industry-
association-law-industry-conference (Sept. 21, 2023) (delivered at the 2023 Consumer Data Industry Association
Law & Industry Conference).

t t
1 f.
r
major enforcement actions against data brokers charging that they unfairly collected or sold
consumers’ sensitive geolocation data. Thanks in part to the FTC’s unfairness authority, the
Commission was able to secure orders that did not simply require better disclosures around the
sale of consumers’ sensitive location data (i.e., stopping deception)—rather, they prohibited the
practice altogether.
Finally, we understand that New York is considering creating a private right of action to
complement enforcement by the Attorney General. Although the FTC Act does not include its
own private right of action, many state consumer laws do, and private attorneys general have
been force multipliers in protecting consumers from unfair practices.10
We hope this information is valuable to you as you consider legislation in this area. Please do not
hesitate to reach out if there is any assistance we can provide as you consider this legislative
reform.
Hannah Garden-Monheit
Director
Office of Policy Planning
Samuel Levine
Director
Bureau of Consumer Protection
Very Truly Yours,
Identical letters sent to:
The Honorable Kathy Hochul, Governor, New York State
The Honorable Andrea Stewart-Cousins, President Pro Tempe and Majority Leader, New York
State Senate
The Honorable Robert G. Ortt, Minority Leader, New York State Senate
The Honorable Kevin Thomas, Chair of the Committee on Consumer Protection, New York
State Senate
10 Because of its important role in protecting the public, the vast majority of states have adopted unfairness
authority. It bears noting that many states have not adopted the FTC’s specific test for unfairness. See David L. Belt,
Should the FTC’s Current Criteria for Determining "Unfair Acts or Practices" Be Applied to State ‘Little FTC
Acts’? 9 ANTITRUST SOURCE 6 (2010).