![Sample our Computer Science journals, sign in here to start your access, latest two full volumes FREE to you for 14 days]({"type":"image" , "src" : "/sda/5928/TOC-Subject-Sample-2021-Computer-Science.jpg"})
Abstract
We use the legal framework of captive audience to examine the Federal Trade Commission 2012 privacy guidelines as applied to mobile marketing. We define captive audiences as audiences without functional opt-out mechanisms to avoid situations of coercive communication. By analyzing the current mobile marketing ecosystem, we show that the Federal Trade Commission's privacy guidelines inspired by the Canadian “privacy by design” paradigm fall short of protecting consumers against invasive mobile marketing in at least three respects: (a) The guidelines overlook how, in the context of data monopolies, the combination of location and personal history data threatens autonomy of choice; (b) the guidelines focus exclusively on user control over data sharing, while ignoring control over communicative interaction; and (c) the reliance on market mechanisms to produce improved privacy policies may actually increase opt-out costs for consumers. We conclude by discussing two concrete proposals for improvement: a “home mode” for mobile privacy and target-specific privacy contract negotiation.
Acknowledgments
The authors thank the following individuals for valuable comments and suggestions at different stages of the article: Ece Algan, Gregory Armstrong, Sonja Foss, Oscar H. Gandy, Jr., and William Waters, as well as the editors of The Information Society and three anonymous reviewers. An earlier version of the article was presented at the “Mobile Communication, Community and Locative Media” preconference, International Communication Association Convention 2012.
© Mihaela Popescu and Lemi Baruh
Notes
1. Mainstream Marketing Services, Inc. v. FTC, 358 F.3d 1228, 1245 (10th Cir. 2004), cert. denied Mainstream Mktg. Servs. v. FTC, 543 U.S. 812 (2004).
2. The first ordinance designed to prohibit contact between advertiser and customer unless the contact was specifically allowed by the customer dates back to 1931, to the city of Green River. There the city responded to complaints by shift workers whose rest was disturbed by the increase in door-to-door selling and passed the Green River Ordinance that prohibited the practice of door-to-door selling unless specifically allowed by a resident (Bene, Lauritzen, and McCullers Citation2007, 9). See also Town of Green River v. Fuller Brush Co., 65 F.2d 112 (10th Cir. 1933).
3. Public Utilities Commission of the District of Columbia v. Pollak, 343 U.S. 451, 468 (S. Ct. 1952, J. Douglas dissenting).
4. Breard v. Alexandria, 341 U.S. 622 (S. Ct. 1951).
5. Martin v. Struthers, 319 U.S. 141 (S. Ct. 1943).
6. Rowan v. U.S. Post Office Dep’t., 397 U.S. 728 (S. Ct. 1970); Mainstream Mktg. Servs. v. FTC, 358 F.3d 1228 (10th Cir. 2004).
7. Saia v. New York, 334 U.S. 558 (S. Ct. 1948); Kovacs v. Cooper, 336 U.S. 77 (S. Ct. 1949); Public Utilities Commission v. Pollak, 343 U.S. 451 (S. Ct. 1952)
8. Packer Corp. v. Utah, 285 U.S. 105 (S. Ct. 1932); Cohen v. California, 403 U.S. 15 (S. Ct. 1971); Erznoznik v. Jacksonville, 422 U.S. 205 (S. Ct. 1975).
9. Madsen v. Women's Health Center, Inc., 512 U.S. 753 (S. Ct. 1994); Hill v. Colorado, 530 U.S. 703 (S. Ct. 2000); Snyder v. Phelps, 131 S. Ct. 1207 (S. Ct. 2011).
10. Frisby v. Schultz, 487 U.S. 474 (S. Ct. 1988)
11. FCC v. Pacifica Found., 438 U.S. 726 (S. Ct. 1978).
12. Packer Corp. v., Utah, 285 U.S. 105, 110 (S. Ct. 1932)
13. Rosenfeld v. New Jersey, 408 U.S. 901 (S. Ct. 1972)
14. Lehman v. City of Shaker Heights, 418 U.S. 298 (S. Ct. 1974)
15. Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530 (S. Ct. 1980)
16. Saia v. New York, 334 U.S. 558, 562 (S. Ct. 1948)
17. Cohen v. California, 403 U.S. 15, 21 (S. Ct. 1971).
18. See for example Rowan v. U.S. Post Office Dep’t., 397 U.S. 728 (S. Ct. 1970), in which the principle that “a man's home is his castle” is the basis of the ruling.
19. Indeed, as the Supreme Court observed, “a State may permissibly determine that, at least in some precisely delineated areas, a child—like someone in a captive audience—does not possess the capacity for individual choice which is the presupposition of First Amendment guarantees.” Ginsberg v. New York, 390 U.S. 629, 649–650 (S. Ct. 1968, Stewart, J., concurring).
20. Planned Parenthood v. Casey, 505 U.S. 833, 851 (S. Cr. 1992).
21. David A. J. Richards (Citation1977), for example, connects the right to privacy to the “separateness from other persons” and the ensuing ability to make independent decisions regarding one's life. Similarly, June A. Eichbaum (Citation1979) argues that the value of privacy as a civil right lies in its ability to protect individual interests, particularly at times when it may conflict with a majoritarian structure.
22. “One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear … the home is different.” Frisby v. Schultz, 487 U.S. 474, 484 (S.Ct. 1988).
23. A sign that the household residents do not want to be disturbed is such a signaling mechanism, just like adding one's telephone number to a Do Not Call list. See also Hartstein (Citation2006, 805), arguing that “the gravamen of unwilling audience doctrine appears to be the audience's ex ante deliberate and explicit rejection of the expression.”
24. For example, a user who happened to start building a movie library using Zune Marketplace service, which utilizes DRM, has only a limited number of Microsoft branded choices for playing the videos on a portable device (e.g., the now-discontinued Zune HD). The remaining portable devices provided by companies will not be able to play the videos (unless the DRM is hacked). Even if the consumer desires to shift to a new video service provider that sells DRM-free videos, the initial library obtained from Zune Marketplace will only be compatible with Microsoft branded portable players, leaving the consumer with the options of either continuing to use Microsoft or doing away with the library that she owns to move to a new service and a device (or keep both services and carry two portable devices).
25. Tellingly, some commentators called Apple's “Do Not Disturb” mode introduced with iOS 6, a mode that delays phone alerts, “the most thrilling new iPhone feature” (Bosker Citation2012, online).