"A Moment of Privacy" addresses one legal development each month in the area of privacy and data security law. We answer the questions our clients are asking, in a way that we hope gives practical information to our readers. If you send us your question, you may find your answer in an upcoming newsletter.
And now for this month's question:
Q: My B2C company is beginning to explore marketing to consumers' wireless devices using text messaging ("SMS," or "short message service") and MMS messaging ("Multimedia Messaging Service"). We may even target our promotions based on where the recipient is physically located using the wireless device's GPS technology. We also may target our promotions to teens and tweens. What legal issues should I be aware of as we navigate through this relatively new area?
A: This question is very timely, as mobile marketing has received a lot of attention from regulators and industry organizations in the last few months.
- Statutes. Statutorily, we have two
federal laws that apply to mobile messaging: the Telephone
Consumer Protection Act (the "TCPA") and the
Controlling the Assault of Non-Solicited Pornography and
Marketing Act (the "CAN-SPAM Act"). Each of these
laws apply to mobile promotional messaging, depending on the
technology used to send the messages. We also have a host of
state laws that apply, either expressly or implicitly, to
mobile promotional messaging. In summary, the law requires
that companies obtain express consent from individuals before
sending promotional messages to their wireless devices. In
some cases, specific consent language is required.
- Mobile Marketing Association Guidelines.
In addition to statutes, we also have various industry
standards that apply to text messaging campaigns. The Mobile
Marketing Association (MMA), for example, has a set of
Consumer Best Practices Guidelines for mobile marketing,
which is incorporated by reference into the carrier
agreements under which short codes are issued by carriers to
companies that want to launch text messaging campaigns. These
best practices provide, among other things, requirements for
consumer notices, consent and opt-out rights.
- Wireless Association Standards for Location-based
Marketing. The CTIA (The Wireless Association)
recently issued a set of best practices that provide for,
among other things, consumer notice and consent for
location-based marketing, and consumer choice for sharing of
location information with third parties. These guidelines
also address retention and security of location-based
information, abuse reporting and public self-certification of
compliance with the best practices. (Self-certification, in
itself, presents its own set of legal issues.)
- Federal Trade Commission. Just in the
last few weeks, the Federal Trade Commission (FTC) hosted a
public town hall meeting, "Beyond Voice: Mapping the
Mobile Marketplace." Topics discussed included the
evolution and future of mobile marketing, location-based
marketing, consumer disclosures and consents, the challenges
of small PDA screens for consumer notifications, teen and
tween-targeted campaigns, parental controls and security
issues with respect to data stored on mobile devices. Also
recently, two consumer advocacy groups (the Center for
Digital Democracy and the U.S. Public Interest Research
Group) announced their plan to file a complaint with the FTC,
asking it to examine behavioral advertising via mobile
devices and to promulgate special rules regulating mobile
marketing to children and teens.
It is reasonable to anticipate that the FTC will ultimately issue either guidelines or rules which apply to mobile marketing campaigns that attempt to set forth uniform requirements for mobile marketing. Until then, companies must navigate and synthesize the various sources of applicable laws and standards, and derive an approach that meets their business objective while avoiding backlash from the media, the industry, the wireless carriers and consumers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
