mobile-phoneInternet marketing has long been a widely utilized strategy for achieving marketing goals. With innovative progression in new technologies, mobile devices have enabled users of such devices to gain access to full internet capabilities while on the go, thereby converting internet marketing into the now commonly recognized scheme termed “mobile marketing.” Mobile marketing, as defined by Dickinger, et al, in a 2004 publication entitled An Investigation and Conceptual Model of SMS Marketing, includes “using interactive wireless media to provide customers with time and location sensitive, personalized information that promotes goods, services and ideas, thereby generating value for all stakeholders.”


Although mobile marketing can offer both effective and efficient marketing solutions, the associated privacy risks involved with such strategies, present unique dilemmas much different from former counterparts involving non-mobile technologies. ¬†Issues concerning privacy, and the recent adaptations in legislative policies addressing such concerns, require the individuals that utilize, market, and develop mobile marketing services to act in a careful and prudent manner to ensure adherence with consumers’ right to privacy. Often, such prudent planning requires consultation from a mobile marketing consultant and/or mobile marketing expert to ensure compliance with local and federal regulations pertaining to mobile marketing.

Concerns regarding privacy are governed primarily by the Federal Trade Commission (FTC), as enumerated in the Code of Federal Regulations. Commenting on the continuing increase of privacy issues caused by advancements in technology, FTC Chairman Jon Leibowitz stated “The mobile world is expanding and innovating at breathtaking speed, allowing consumers to do things that would have been hard to imagine only a few years ago.” ¬†Addressing some of the various privacy concerns, the Federal Trade Commission (FTC) released a report in February 2013 regarding Mobile Privacy disclosures, which provided in part:

The complexity of the ecosystem raises 21st century concerns: When people use their mobile devices, they are sharing information about their daily lives with a multitude of players. How many companies are privy to this information? How often do they access such content and how do they use it or share it? What do consumers understand about who is getting their information and how they are using it?

The Federal Trade Commission (“FTC” or “Commission”) has worked on privacy issues for more than forty years, and in 2000 began considering the privacy implications raised by consumers’ growing use of mobile devices. Most recently, in May 2012, the FTC hosted a mobile privacy panel discussion that focused on transparency: With so many players collecting and using consumer data, who should provide privacy information to consumers? Given the limited screen space of mobile devices, how can this information be conveyed?”

Based on the Commission’s prior work in this area, the panel discussions, and the written submissions, this report offers several suggestions for the major participants in the mobile ecosystem as they work to improve mobile privacy disclosures.

Although the FTC report is provided for recommendation purposes, rather than as legislative rulemaking, it is advisable to refer to such reports in conjunction with currently enacted regulations, especially in the absence of federal rules that specifically and completely address emerging technologies, such as those involving mobile devices. FTC’s February 2013 report, as well as other recent reports, and current federal regulation concerning mobile marketing, can be accessed through FTC’s website at www.FTC.gov.

Many would agree to the lack of coincidence in FTC’s release of its report regarding mobile marketing privacy concerns occurring within just days of settlement being reached between the U.S. and a mobile marketing company. In its consent decree, filed in District Court on February 8, 2013, the Defendant agreed to settle charges for privacy violations pursuant to Title 16, Subchapter C, Part 312, of the Code of Federal Regulations, regarding regulation of unfair or deceptive acts or practices in connection with the collection, use, and/or disclosure of personal information from and about children on the Internet, as well as other privacy violations concerning notice and parental consent.

The settlement reached in the recent case includes only one example of the vastly diverse amount of litigation, brought forth in actions by both government regulators, and individual entities, concerning civil liabilities in mobile marketing privacy violations. In circumstances where mobile marketing expert witness services were either not sought prior to implementing a mobile marketing plan or product, or such consulting services failed to consider all legal repercussions, and therefore were insufficient, business owners and mobile marketing developers alike, may find themselves as unintended parties to litigation. Consequently, with such high financial stakes involved, and other risks associated with injunctive relief affecting stakeholders in the field of mobile marketing, it may be better practice to consider consultation with a mobile marketing expert as an aforethought, as opposed to finding yourself in the menacing position of defending violations involving consumer privacy rights.

By: Alicia McKnight, J.D.