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

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). …