SOMEBODY’S WATCHING ME: THE NEW FRONTIER OF ‘SURVEILLANCE’ PRICING
For much of the last decade, antitrust scrutiny of pricing algorithms has centered on a familiar question: are competitors using shared software, common data sets or third-party vendors to coordinate prices?
Those questions remain important, of course, but regulators are now asking a broader one: what happens when firms personalise prices at the individual level based on what they know about the particular individual?
States have responded to this question with various regulatory approaches. In April 2026, Maryland enacted the first law in the US to ban this practice, often referred to as ‘surveillance’ pricing, in the food retail and delivery sectors.
Six months earlier, New York’s Algorithmic Pricing Disclosure Act took effect, which, short of banning it, required many companies using algorithmic pricing to disclose it to consumers. California has since signalled that undisclosed personalised pricing may run afoul of the state’s Unfair Competition Law, and the New York attorney general opened an inquiry into Instacart after a report revealed its users were being charged different prices – up to as much as 23 percent – for the same products at the same time.
Pricing decisions can no longer be assessed separately from data governance. Companies that use individualised data to inform pricing decisions face a rapidly evolving regulatory landscape and patchwork of state requirements, privacy laws, consumer protection principles and antitrust theories.
The rise of surveillance pricing
Surveillance pricing is a species of algorithmic pricing. Algorithmic pricing typically relies on automated means to adjust prices based on inventory, demand, competitor prices or other market conditions.
Jul-Sep 2026 issue
Proskauer