It will be essential, as mobile marketing evolves and becomes an established platform, that the commercial systems in place preserve the rights of consumers. It is especially critical that FTC act now to protect the interests of the public, while the mobile platform is still in development, and as an even more interactive Mobile 2.0 environment looms on the horizon.^[193]

The Center for Digital Democracy and the U.S. Public Interest Research Group ask that the FTC also act to protect consumers from a growing number of deceptive and unfair marketing practices and the resultant threats to consumer privacy that are a part of the rapidly growing U.S. mobile advertising landscape. We ask that the Federal Trade Commission:

1. Require True Notice and Disclosure. The FTC must require notice of all information collected on mobile devices and full disclosure of how that data will be used. In particular, the commission needs to spell out how consumer consent is to be given, to ensure that it’s meaningful.

   1. The FTC may need to ask Congress to pass federal legislation requiring affirmative consent for all data used—permission that must be regularly updated and re-affirmed by users.

   2. All data collection and mobile marketing techniques must be unbundled, disclosed, and given affirmative consent by users.

   3. The commission must strive to have industry develop meaningful codes of conduct related to marketing that go beyond these basic principles.

2. Redefine “Unfair and Deceptive.” In addition to refining and updating the concept of “personally identifiable information,” the commission must help consumers understand how tracking and targeting technologies can exploit their geographic location and the Mobile Identification Number (MIN) of their phones.

   1. The FTC will have to reframe what is “unfair and deceptive” in the mobile arena.

   2. The commission also needs to examine the relationships mobile marketers have with carriers, to understand how and what data are being shared and used by partners and affiliates.

3. Review Industry Self-Regulation. With industry self-regulation having proved so ineffective, the FTC should examine the various mobile marketing standards groups to determine how well consumer interests are represented, including analyzing the various reports and self-regulatory proposals that have been produced thus far.

   1. The FTC should work with the FCC and state authorities to create a new Mobile Marketing, Consumer Protection, and Privacy Task Force. The Task Force should make annual reports to the public and, where appropriate, recommend new legislation to Congress.

4. Protect Youth from Unfair or Deceptive Practices. The commission should also open up a separate inquiry and propose rules to protect youth from unfair or deceptive mobile marketing practices. As this complaint demonstrates, emerging data collection and targeting mechanisms pose significant threats to the privacy of hundreds of millions of mobile users in the U.S. But those most susceptible to the risks and temptations of these practices are also those least able to guard against them—namely, children and teenagers. The commission must work to protect them.

The scope of the threat posed by the mobile marketing practices outlined in this complaint is clear. The urgent need to protect the public should galvanize the FTC into immediate action. Consumer privacy rights should not be lost—but rather enhanced—as we move farther into the wireless future.

Respectfully submitted,

Jeff Chester
Executive Director
Center for Digital Democracy
1718 Connecticut Ave. NW
Suite 200
Washington, DC 20009

Ed Mierzwinski
Consumer Program Director
U.S. PIRG
218 D St. SE
Washington, DC 20003

cc:

William E. Kovacic, Chairman
Federal Trade Commission
Room 540
600 Pennsylvania Ave, NW
Washington, DC 20580

Commissioner Pamela Jones Harbour
Federal Trade Commission
Room 326
600 Pennsylvania Ave, NW
Washington, DC 20580

Commissioner Jon Leibowitz
Federal Trade Commission
Room 340
600 Pennsylvania Ave, NW
Washington, DC 20580

Commissioner J. Thomas Rosch
Room 528
600 Pennsylvania Ave, NW
Washington, DC 20580