Adcreep (eBook)

Mark Bartholomew is Professor of Law at University at Buffalo School of Law. He has provided commentary on intellectual property and privacy issues in The New York Times, The Washington Post, Los Angeles Times, USA Today, The Wall Street Journal, and other news outlets.

Contents and AbstractsIntroduction chapter abstractThe United States' system for regulating advertising is outdated, leaving consumers at the mercy of new invasive marketing techniques. The introduction catalogs some of these techniques, including biometric data collection, online tracking, neuromarketing, and celebrity selling on social media, and indicates where they will be explored in greater detail. In his 1999 thriller Minority Report, director Steven Spielberg offered a dystopic vision of the future where advertising had become more personalized, more insistent, and more effective. The introduction maintains that Spielberg's vision has become dangerously close to reality thanks to lawmakers' unwillingness to address modern marketing's technological advances.1Advertising on Trial chapter abstractThis chapter explores the relationship between advertising and the law. After a brief description of the different regulatory entities responsible for policing advertisers (e.g., courts, government agencies, private litigants), it illuminates the central themes embedded in advertising law. Unresolved debates over consumer rationalism, government paternalism, and the professional status of advertisers all played a part and continue to play a part in assessing the need for regulatory intervention.2Colonizing New Advertising Spaces chapter abstractThis chapter details advertising's colonization of once adfree spaces through "guerilla marketing." Some spaces have become new targets of opportunity thanks to government willingness to allow advertising into civic territories like schools and national parks. Others are only now becoming commercial targets as technology makes new forms of advertising feasible. The chapter uses Michel Foucault's writings on normalization to show how advertisers exercise power over consumers in these spaces. Commercial annexation of these geographic arenas is not inevitable. The chapter describes how municipalities enacted zoning ordinances to block the spread of billboards on newly built roadways in the early 1900s. Today, however, First Amendment decisions evince great hostility to any government restrictions on advertising. The Supreme Court's increasing solicitude for the rights of corporate speakers gives advertisers more opportunities to turn regulable "public" spaces into unregulable "private" ones.3The New Market Research chapter abstractThis chapter examines the social consequences of the technologies advertisers use to study potential customers. After discussing the sheer comprehensiveness of the growing commercial spying apparatus, the chapter turns to an analysis of potential harms from this surveillance. Life in a commercial Panopticon threatens intellectual privacy and opens up consumers to discriminatory treatment. In the late nineteenth century, Samuel Warren and Louis Brandeis famously theorized a new "right to privacy" as a response to technologies that allowed for the mass circulation of individuals' names and photographs without their permission. Today's technologies for commercial spying also implicate privacy interests. The problem is contract law: advertisers and media providers can secure permission in the form of online boilerplate before most data collection begins. The chapter concludes by arguing that any form of contractual private ordering will insufficiently safeguard consumer privacy.4From Market Share to Mindshare chapter abstractThis chapter discusses how the new discipline of neuromarketing combines emerging insights from neuroscience with the study of consumer behavior. By allowing purchasing motivations to be probed without conscious participation, neuromarketing threatens to reveal and activate inner prejudices that consumers might prefer to keep from view. After describing neuromarketing and its social consequences, the chapter provides a historical source of comparison: the scandal over subliminal advertising in the mid-1950s. Both government and private regulators reacted swiftly to the prospect of subliminal ads. Yet neuromarketing techniques are completely unregulated, with the Federal Trade Commission and institutional review boards abdicating their supervisory role. Meanwhile, the law has changed to privilege the tactics of psychological persuasion employed by advertisers. This is most evident in the way trademark law has expanded to protect the emotional hold of a brand over consumers, particularly through suits for trademark dilution.5Sellebrity chapter abstractThis chapter explores the way in which celebrities sell products and themselves in the age of social media. A vibrant marketplace exists that ties evidence of online visibility to lucrative endorsement deals. The chapter also describes how consumers adopt their own techniques of "micro-celebrity," gaming their revelations to accumulate followers. Conveniently for advertisers, these revelations can be quantified in the form of "likes," "shares," and "retweets" and used to find individuals to champion their products. The problem is not so much with celebrities or digital communication per se, but with a system that goads users into personal disclosures, then strips them of control over those disclosures after they take place. The chapter ends by focusing on one particular legal construct—the right of publicity—that reinforces the importance of high visibility as a measure of status, even deeming it to be "property" that can be legally protected beyond death.6Stopping Adcreep chapter abstractThis chapter offers a strategy for alerting the public to the dangers of adcreep. Utilizing the sociological study of social movement framing processes, the chapter proposes three potential narratives designed to organize a new wave of consumer activism. Reformers must stress modern advertising's complexity, the paternalism motivating some market research methods, and the anti-democratic implications of personalized advertising. The chapter also suggests corresponding legal reforms, including supervision of commercial data collection by the Federal Trade Commission and corporate research boards, greater leeway for outside speakers to use corporate trademarks and celebrity images, and a more nuanced understanding of First Amendment protection for commercial speech.