Academic journal article Federal Communications Law Journal

Direct Marketing, Mobile Phones, and Consumer Privacy: Ensuring Adequate Disclosure and Consent Mechanisms for Emerging Mobile Advertising Practices

Academic journal article Federal Communications Law Journal

Direct Marketing, Mobile Phones, and Consumer Privacy: Ensuring Adequate Disclosure and Consent Mechanisms for Emerging Mobile Advertising Practices

Article excerpt

 I.   INTRODUCTION
 II.  MOBILE COMMERCE AND MOBILE ADVERTISING
 III. M-ADVERTISING RAISES PRIVACY CONCERNS FOR
      CONSUMERS
 IV.  PRIVACY REGULATION AND MOBILE ADVERTISING
 V.   FEDERAL PRIVACY REGULATION AND M-ADVERTISING
      A. Breach of Privacy Policies as Unfair Trade Practices
      B. Spamming as an Unfair Trade Practice
         1. "Opt-out" Consent is the Minimum Required to
             Send Unsolicited Advertising Accessed on
             Mobile Phones
         2. "Opt-in" is Required to send M-Ads Directly to
            Mobile Phones Using MSCMs
      C. Telemarketing as Unfair Trade Practices
         1. The Telemarketing Sales Rule
         2. The Telephone Consumer Protection Act
      D. Mobile Carriers' Obligations to Protect Phone
         Subscribers' Personal Data
         1. Customer Proprietary Network Information
         2. Subscriber List Information and Access to Mobile
            Phone Numbers
         3. Federal Preemption Limits State Law Regulation
            of Telecommunications Carriers That Aim to
            Enhance Telephone Subscribers' Personal Data
            Protection
         4. Legislative and Administrative Proposals Aim to
            Enhance Consumer Privacy Protections for
            Telephone Records and Mobile Phone Numbers
      E. Obtaining Subscribers' Phone Records by "Pretexting"
         Is a Federal Crime
      F. Federal Statutes Protect Mobile Phone Users'
         Communications from Unlawful Interception or
         Unauthorized Access
VI.   STATE PRIVACY LAWS AND M-ADVERTISING
      A. State Consumer Privacy Laws Address Unfair and
         Deceptive M-Advertising Practices
      B. Common Law Privacy Torts May Apply to M-Advertising
         Practices
      C. Common Law Contract Principles May Limit or
         Facilitate M-Advertising Practices--Focus on Mobile
         Services Agreements
VII.  Is FEDERAL PRIVACY REGULATION ADEQUATE TO PROTECT
      CONSUMER PRIVACY IN M-ADVERTISING?
      A. Consumer Privacy and the Market Approach to Data
         Protection
      B. Privacy Policies Should Provide Notice and Disclose
         Company Privacy Practices
      C. Industry Models for Privacy Policies for M-Advertising.
      D. Fair Information Practices for M-Advertising Must
         Include Obtaining Appropriate Consumer Consent
         1. Using Form Agreements to Obtain Consumer
            Consent
         2. The Use of Privacy Enhancing Technologies as an
            Alternative to Privacy Policies
      E. Why the Market Approach to Data Privacy Does Not
         Currently Ensure Appropriate Consumer Consent for
         M-Advertising
         1. Voice Calls Made to Mobile Phones
         2. Electronic Messages Sent to Mobile Phones
         3. Ads Displayed on Web Sites Accessed with
            Mobile Phones
         4. Ads Generated by Adware or Spyware Loaded on
            Cell Phone Handsets
      F. Proposal for Regulatory Reform to Ensure Appropriate
         Consumer Notice and Consent for M-Advertising
         1. The Need to Protect the Confidentiality of Cell
            Phone Numbers
         2. The Need for Meaningful Short Privacy Notices
            for Mobile Advertising
         3. The Need for Additional Protections Related to
            Consumer Location Data
VIII. CONCLUSION

I. INTRODUCTION

Mobile commerce is gradually emerging as a new commercial environment in the U.S., facilitated by the increasing numbers of consumers who have mobile phones and other portable wireless electronic communications devices. (1) No longer simply a mobile telephone, mobile phones offer new communications and information services. (2) Mobile commerce will enable consumers to use their mobile phones to conveniently purchase goods and services (like parking passes or theater tickets) and to receive timely information content (like directions and maps). …

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