II. Current Legislative Landscape

CAUTIONARY LESSONS FROM STATE EFFORTS

In June, we published research concerning Maryland’s “Protection From Predatory Pricing Act,” a proposal framed as a landmark measure to rein in surveillance pricing. Gov. Wes Moore (D-MD) touted the legislation amid his reelection campaign. Though many well-intentioned bills are narrowed during the legislative process while keeping their core tenets intact, the Maryland legislation is a different matter entirely. Lobbying pushback by industry groups including the Maryland Retailers Alliance gutted the bill’s substance as an anti-surveillance pricing measure. The bill’s exclusion of corporate loyalty programs, a common mechanism for personalized pricing, alongside terms-of-service loopholes and a provision that restricts private citizens’ right of action, renders the bill’s protections functionally meaningless.

Since our analysis was published, the state of New Jersey joined both Maryland and Connecticut in enacting surveillance pricing legislation. Though New Jersey’s law has its own shortcomings, including potential loopholes that consumer advocates have identified as allowing corporations to continue offering “personalized” discounts, it has nonetheless been greeted as a real step toward banning surveillance pricing. In California, legislators are advancing A.B. 2564, which contains the provision “(b), a retailer shall not engage in surveillance pricing.” The bill has been welcomed by advocacy groups focused on consumer protection and digital rights but faces strong opposition from the California Chamber of Commerce (CalChamber). Supporters are working to advance the bill before the legislative session ends on August 31.

BUILDING A NECESSARY FEDERAL FRAMEWORK

At the hearing, experts testified to how surveillance pricing impacts Americans’ economic well-being. Lindsay Owens of the Groundwork Collaborative, which documented Instacart’s deceptive pricing practices in December 2025, spoke to the impact of surveillance pricing on everyday shoppers. Robert Hedges, formerly Visa’s chief data officer, testified on Mastercard’s Dynamic Yield subsidiary and its arrangement with JetBlue on pricing. According to Hedges, Dynamic Yield and JetBlue’s arrangement included calculating individual consumers’ willingness to pay based on travel patterns, booking timing, and their personal circumstances.

As it stands, multiple promising federal bills on surveillance pricing have been introduced, including the Stop AI Price Gouging and Wage Fixing Act, introduced by Rep. Greg Casar (D-TX), which would ban both algorithmic price-setting and wage-setting based on personal data. The One Fair Price Act, introduced by Sen. Kirsten Gillibrand in December 2025 and modeled after a proposal in Albany, drew on findings by the Lina Khan-era FTC on the practice, as the press release noted. Given that industry groups have proven effective at combating surveillance pricing legislation at the state level, powerful groups like the Chamber of Commerce will likely pose a significant obstacle to federal measures on the subject. Though Hawley has not specified what legislation he will pursue on the topic, it is crucial that any bill produced in the aftermath of the testimony favors substance over style. This includes clamping down on loyalty program loopholes that give corporations the ability to continue harvesting personal data and engaging in practices that amount to surveillance pricing in everything but name.

III. Conclusion

Though most Americans intuitively understand that corporations profit off of their personal data, many are unaware of how advanced the mechanisms of doing so have become. In the hearing, Walmart’s patent for shopping carts equipped with biometric sensors capable of detecting heart rates was highlighted as an example of advancements in data-collection technology. In 2024, Lina Khan envisioned a scenario in which a grieving family member, searching for airfare using a device aware of their funeral travel plans, finds themselves paying an unexpectedly expensive ticket. Less than two years later, JetBlue became embroiled in a controversy over precisely this issue.

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State-level legislation has long helped chart the course for federal action on pressing policy areas. The Maryland legislation, however, provides a cautionary model to avoid. The bill's passage provided political cover for politicians who pledged to rein in surveillance pricing without tangible policy change. As a result, the bill empowers corporations to continue engaging in the same harmful practices without fear of real legislative scrutiny. When Khan posited the funeral travel scenario in 2024, she asked whether Americans want to “wake up one day where this is just now the new normal.” Two years on, evidence suggests these fears are already coming to fruition. Polling indicates that Americans fear that surveillance pricing will further exacerbate the cost-of-living crisis, and Congress must respond with both urgency and real substance.

Aidan Smith
Founder, Labyrinth Insights