NY AG, Retail Group Trade Barbs Over Surveillance Pricing Law
Attorney General Letitia James (D) and the National Retail Federation (NRF) continue to fight over whether a New York law requiring that retailers disclose when they are using algorithmic pricing is a violation of the First Amendment. In court documents filed Thursday, James emphasized the Algorithmic Disclosure Act doesn't halt algorithmic pricing, but requires that companies post a clear notice informing consumers if a price was set by an algorithm using personal data.
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The NRF said New York "has failed to satisfy its burden to show the Act materially and directly advances a substantial interest in a manner that is not more extensive or burdensome than necessary."
Instead, it asks the court to apply "a watered-down version of the wrong First Amendment standard, which would allow it to compel commercial speech so long as that speech were literally true (even if misleading) and so long as it were to have some conceivable relationship (even if unproven) to a substantial interest (even if speculative)."
But James fired back, arguing NRF failed to state a plausible claim. "Although couched as a First Amendment claim, Plaintiff’s real objection to the Act’s disclosure requirement is that it will—to quote Plaintiff’s revealing admission -- 'contradict[] corporate messaging,'" she said.
"Plaintiff’s opposition only serves to highlight that its First Amendment claim is ripe for dismissal under clearly applicable Supreme Court and Second Circuit precedent," James added. "Indeed, Plaintiff spends much of its opposition tiptoeing around a quarter-century of Second Circuit case law bolstering Defendant’s argument that the Act is constitutional."
The AG has argued previously that the act doesn't violate the First Amendment (see 2507290049).
In June, NRF asked a federal court to block the act, and filed a suit at the U.S. District Court for Southern New York (docket 1:25-cv-05500). The U.S. Chamber of Commerce filed an amicus brief on Aug. 21 supporting the NRF (see 2508220023).
In a LinkedIn post in early July, privacy lawyer Heidi Saas slammed the NRF lawsuit, arguing that the First Amendment doesn't protect surveillance pricing (see 250707004).