• by Wendy Davis  @wendyndavis, June 5, 2023

The Federal Trade Commission on Monday filed an amended complaint against mobile data broker Kochava, which allegedly sold sensitive geolocation data.

The new complaint was filed under seal, and is at least temporarily unavailable to the public.

“The FTC anticipates that defendant Kochava Inc. may take the position that some of the materials referenced, excerpted, or cited in the amended complaint constitute trade secrets and are entitled to confidential treatment,” the agency said in a motion filed with U.S. District Court Judge B. Lynn Winmill in Idaho.

The agency said it doesn't believe the new complaint reveals trade secrets, but “out of an abundance of caution” is asking to keep the document under seal until Winmill can decide whether it should remain confidential.

The amended complaint comes four weeks after Winmill dismissed the FTC's claim that Kochava engaged in an unfair business practice by allegedly selling consumers' precise location data.

Winmill ruled that the allegations in the FTC's original complaint, even if proven true, wouldn't show that Kochava created a “significant risk” of harm to consumers.

The judge said at the time that the FTC could beef up its allegations and bring its claim again.

The battle between the FTC and Kochava dates to August, when the FTC alleged that Kochava sold information about people's precise locations -- including data that could reveal visits to sensitive locales.

The agency alleged that Kochava's data -- which is obtained from other companies -- can be used to identify "consumers who have visited an abortion clinic and, as a result, may have had or contemplated having an abortion," as well as "medical professionals who perform, or assist in the performance, of abortion services.”

Winmill said in his dismissal order that the “purported privacy violation is not severe enough to constitute 'substantial injury,'” adding that information gleaned from geolocation data would be based on unreliable inferences.

“Geolocation data showing that a device visited an oncology clinic twice in one week could reveal that the device user suffers from cancer,” he wrote. “Or it may instead reveal that the person has a friend or family member who suffers from cancer.”

Winmill also said information that can be inferred from location data “is generally accessible through other, lawful means.”

“A third party may, for example, observe a person’s movements on public streets and sidewalks as they go to and from home or a medical facility,” he wrote. “A third party may also discover a person’s home address by reviewing publicly accessible property records.”

Kochava CEO Charles Manning indicated late Monday that the company will ask Winmill to throw out the FTC's new complaint.

“We expect the FTC’s amended complaint will, once again, fail to survive Kochava’s forthcoming motion to dismiss,” he stated. “As we’ve said all along, Kochava operates consistently and proactively in compliance with all rules and laws, including those specific to privacy.”