JOHN YANG: Today is Super Saturday, the last# Saturday before Christmas.

It's predicted to## be the second busiest shopping day of the year.

If# you're going online to buy some last minute gifts,## there's a chance the price you'll pay# will be influenced by what's known as## surveillance pricing.

That's the practice# of some retailers to use the power of AI to## sift all sorts of personal data center# to set individualized prices online.

Things like your age, gender, geographic# location and even browsing history could## change the price you pay.

Ali# Rogan spoke with Jay Stanley,## senior policy analyst for the Speech# Privacy and Technology Project at the ACLU.

ALI ROGIN: Thank you so much for joining us.

So# what is surveillance pricing and how does it work?

JAY STANLEY, Senior Policy Analyst,# ACLU: Surveillance pricing is basically## when companies gather a huge amount of# data about they're individual customers.## And we're living in an era where more# data is being collected about us than## ever before.

Companies take that data# and they use it to try to figure out## basically how to wring more money out# of you when you buy things from them.

What is your pain point?

What are you willing to# pay, questions like that.

And there's a widespread## experimentation happening with that kind of# pricing in a number of business sectors today.

ALI ROGIN: So what are some examples of# that?

How are these companies using the## massive amounts of data that exist# about all of us online to give us## these I've heard it described# as like personalized pricing?

JAY STANLEY: I mean, right off the bat, there's# a lot we don't know because, number one, they're## going to claim trade secrets.

Number two, they're# using AI, which is very opaque in the first## place.

Even the businesses may not understand# what the logic of the AI they're using is.

But this first came into public attention# when the president of Delta Airlines,## speaking to investors, said that they were# planning on using AI to set an increasing## proportion of their prices, their airline# prices, and that they would use personal## information about people to do so.

That created# a bit of an uproar in Congress and elsewhere,## and Delta backed off and said, no,# no, we're not going to do this.

But it really put the issue which# has been out there for, you know,## 10, 15 years on a low key level, really# put it into the headlines recently.

And## so we're seeing attention by Congress, by state# legislatures, by the Federal Trade Commission## and others.

There was a recent report that# Instacart has been doing differential pricing.## A consumer group did a test and# they found that 75 percent of the## products instacart were getting set with# different prices with different people,## with some of the prices 23 percent higher# than for some people, than for others.

The Wall Street Journal has reported that# retailers like Home Depot were setting## different prices for different customers,# with customers in affluent areas actually## getting charged less.

I think that there's# a lot we don't know about what's happening,## but it's definitely going on.

ALI ROGIN: What is the difference## between this type of surveillance# pricing and some other examples## and types of differential pricing that we've# seen out there already, like dynamic pricing?

JAY STANLEY: I think that the core element# of surveillance pricing or personalized## pricing is that it's based on data they have# about you.

It's different from, you know,## charging more for an umbrella when it's raining.# It's different from Uber charging different## prices at different times of day depending# on the amount of demand for their cars.

Although there have been allegations that Uber,## for example, charges more to people whose# battery's about to die and things like that## would be personalized pricing.

Uber has denied# that.

There can be very complex and sometimes## subtle differences among the different types# of pricing and that can make it complicated.

But at the end of the day, they have a lot# more information about the way the world works,## about how different people react to# different pricing, different than any## individual does.

And they are seeking to use# that advantage information against individuals.

ALI ROGIN: But all of this is legal,# right?

And the corollary question to## that is what regulations exist or should exist# to put some guardrails around this practice?

JAY STANLEY: It's not totally clear that it's# legal.

It's a bit of a legal gray area.

There are,## for example, privacy laws, state privacy laws such## as California's that may have things to# say about this and the way data is used.

There are civil rights laws that have to# do with discrimination based on anything## based on ethnicity, religion, age,# gender, disability status could get## a company in hot water if what they're# doing starts to implicate those things.

There are state consumer laws, and then# there's the Federal Trade Commission,## which has a charge to go after deceptive# and unfair trade practices.

And there could## be claims that some of these# fall under that.

And in fact,## the FTC has been investigating this.

They# did investigation a report last January,## and there's a Reuters report that they're looking# at it again under the current administration.

So if you're a business that are doing this,# you are not necessarily on solid legal ground.

ALI ROGIN: Is there anything that consumers can do## to protect themselves from the possibility# of being targeted with surveillance pricing?

JAY STANLEY: It's difficult.

I mean, at the end of# the day, a lot of these are bigger than any one of## us.

They're social questions, for example.

I mean,# one of the big problems here is that so much data## about us is being collected and flowing to the# companies that give them advantages over us.

And that's because Congress hasn't failed# to pass an overarching privacy law,## as almost all the other sort of advanced# industrial countries have done.

That would## cut off the flow of data at the source# that is fueling this kind of strategy.

But certainly you can do your best to hide# your identity when you're searching for prices.## You can do your best to protect your# privacy and be aware of it and check## and see whether people you know# are getting charged the same price.

ALI ROGIN: Jay Stanley with# the ACLU, thank you so much.

JAY STANLEY: Thank you.