Abstract - The Information Society 29(5)

Captive But Mobile: Privacy Concerns and Remedies for the Mobile Environment

Mihaela Popescu and Lemi Baruh

We use the legal framework of captive audience to examine the Federal Trade Commission’s 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; (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.

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