Panel Three: Youth-Oriented Online Advertising

by JenniferBishop | March 26, 2011 | Other | 4 Comments

At Saturday’s second panel, Youth-Oriented Online Advertising, we have:

Mary Engle, Federal Trade Commission

Kathy Montgomery, American University

Wayne Keeley, Children’s Advertising Review Unit (CARU)

Leslie Harris, Center for Democracy and Technology

Seeta Peña Gangadharan from the Yale ISP is moderating, and I am Jennifer Bishop with the Yale ISP and Media Freedom and Information Access Clinic.

Mary Engle begins with a description of the FTC’s history of protecting children from harmful advertising. Kids spend about 7.5 hours a day with media, but just because they have technological prowess doesn’t mean that they have a higher level of emotional maturity than children in the past. Recognition that kids are vulnerable must be considered when designing regulatory policy.

Current intitiatives: COPPA – regulates the online collection of personal information from children, either to sites directed to children under 13 or that have active knowledge that children under 13 are users. But a lot of changes have occured since COPPA was enacted. The FTC is looking to make revisions. Furthermore, the statute is flexible – the definition of ‘personal information’ and ‘injury’ could allow for expanded regulation without altering the law.

Teenagers raise a more difficult issue – there is no regulatory mechanism, and if there were, teens could easily evade it. Yet teens still need protection — they are not fully aware of the effects of their online actions, such as identity theft or tracking. Should we require parental consent for teens? How can a website know that they’re dealing with a teen? Most sites we wouldn’t want to require a strict age-verification process. While teens need some protection, they also deserve more autonomy than younger children and have stronger free speech rights.

Kathy Montgomery began discussing 1990s White House summits on children and the internet superhighway. Even though the focus of these early meetings was on internet pornography, Kathy drew awareness to problems with online marketing, and got the issue on the agenda. As a result of these efforts, COPPA was eventually passed. One of the earliest realizations was that advertising isn’t supposed to come into a child’s room and collect information from that child — it was clear, even then, how different advertising is in the digital age.

Today, the marketplace is different. A whole generation has grown up online, and are using the internet in wonderful ways. These technologies have become essential tools, serving children: learn more, explore ideas, get involved, partcipate in democratic processes. Digital marketers know this, and are constantly looking for ways to exploit it. Kathy played a Doritos advertisement, Asylum 626, that incites kids to turn over personal information in order to insert them personally into a supernatural world. The more information the kids give, the “creepier” (i.e. better) the experience is.

Asylum 626 demonstrates the Six Features of modern youth-targeted ads:

1. Ubiquitous Connectivity: digital marketing system is able to reach and engage youth across multiple contexts in an always-on 24/7 environment.

2. Engagement: not just exposure; encouraging kids to play in the ad space, own the brand, connect the brand to their own identities. Also emotional involvement and subconscious, unconscious processes. Nueromarketing.

3. Immersive – interactive gaming environments, virtual rules. Puts the viewer into a subjective state, induce a “flow state” which makes the viewer more susceptible.

4. Personalization: ads tailored and targeted.

5. Social Graph: Marketing that is identifying through social media who your friends and influences are, and inserting the marketing apparatus into that process.

6. User-Generated: Youth not just viewing ads, but creating and distributing brand advertisements. For example, kids promote online ads to others, creating a sense of ownership.

We are looking at marketing that is fully integrated into the social and personal relationships and daily lives of young people.

What do we do about it? We will need some more regulation, in addition to COPPA, that provides some rules of the road for the digital marketplace. We need to pay special attention to teenagers, who have certain vulnerabilities: teens’ brains aren’t fully developed and they can be emotionally vulnerable, particularly around issues of health and privacy. A solution must go beyond media literacy – there should be fair marketing principles that guide the system. We don’t want to just look at children, but privacy safeguards are needed for all consumers.

Wayne Keeley began by describing CARU: it is a self-regulatory body formed in the seventies, solely aimed at advertising directed at young children. The organization has its own guidelines, found at caru.org, which handle everything from how to advertise food on tv to requirements of showing parental supervision in ads, to online behavioral advertising. It reviews websites to make sure they are COPPA-compliant. It opens about 50-100 cases/year, about 30-40% are COPPA-involved.

Leslie Harris began by providing a different context for discussing these issues: the current situation in Washington. Right now, there is a sort of “Privacy Spring” happening within the Beltway. The FTC and Commerce Dep’t have issued reports and have called for a review of COPPA. If we are actually going to get something passed, we need to understand the choices facing these policy-makers.

We also need to understand COPPA’s history. The law, unlike so many others, was never challenged. It stands today because of some decisions that were made to narrow the focus of the bill, including the decision to remove teenagers from regulation. COPPA has had some positive effects, including increased parental involvement. However, partially as a result of the law, there are fewer sites actually directed at kids, innovation has floundered because of the increased cost. The law has taken us down the path towards thinking that ‘parental consent’ is the gold standard in the area — but it puts all of the burden on figuring what to do on the user’s parents. Because the focus has been on – “Can you have access?” (which is answered by requiring parental consent) – there has been less dialogue on what the obligations of the sites as far as content, i.e. should a site ever contain behavioral advertising directed at kids under 13?

CARU is inadequate. We need to change the norms in the area.

Two things that have not changed in the teen market: (1) teens still have constitutional protections; (2) an easy-to-use, effective age-verification system has not emerged.

Proposals on the table: do-not track for teens; fair practices as to teens; parental consent for teens. If the history of regulation in this area is any guide, sites will simply revise their terms of service and declare themselves sites not available to children under 18. The real question we have to confront is: does it really make sense as a matter of public policy to create a new set of protections for 17-year-olds that we wouldn’t also want to apply to 18-year-olds.

What we need is a comprehensive, general privacy law. We stand almost alone in lacking these baseline protections.

Questions & Comments:

Seeta: There is an idea circulating that types of concerns that children’s advocates are concerned with are not that important — that kids and teens don’t actually click on ads. Even the complex, interactive advertising — like the Doritos ad — might not work because its not acceptable socially — its not cool — to participate in these contests.

Kathy: There still need to be some safeguards.

Wayne: There are variations among kids. Not all just pass things off, and it also depends on the ad. As educators and regulators, we have some responsibility to be aware of their vulnerabilities.

Leslie: We tend to have a lot of issues in play that we all label “privacy.” But there is a distinction between collecting data and targeting harmful ads. In response to Seeta’s comment, there is a sort of “moral panic” that surrounds kids on the internet. That being said, parents have a right to be concerned and the industry should have some responsibility.

Mary: Children and adults aren’t always aware of how they are affected. Maybe 1/2 of the advertising dollars directed at kids are wasted, but certainly not all of them are.

Q: Michael Brand: Where do parents come in and where to teachers come in? Most children take a computer literacy course at some point, and what can/should be done by educators of these courses?

Kathy: There is an issue of parental consent here. I do not support parental consent measures for teens. I do think there is a role for education, but the media literacy field is quite weak in this country and isn’t in all schools. Often, the educators are ill-equipped, and are not informed on all of these issues, so its hard to have intelligent conversation about it in the classroom. But mere education on the issues has not been shown to work alone — we need multiple strategies: self-regulation, education, and some government role. I’m concerned that kids who grow up entirely on the internet will have no conception of what privacy is and will not know that their privacy is being invaded.

Wayne: I agree that there must be multiple strategies.

Leslie: I agree as well.

Mary: Last year, the FTC started ADMONGO, which is an advertising literacy program aimed at tweens. Its accessible at admongo.gov, and is an interactive game designed to get tweens to recognize advertising. Through a partnership with Scholastic, there are more materials on admongo.gov that can be used in classrooms around the country.

Q: Jeffrey Chester: We all tried to get regulation in the 1990s — many of the industry forces that were against it back then are still against it now. The reality is that COPPA was all that we could get. Children and teens have been ground-zero for the research and collection strategies. What policies do you think need to be developed respecting teen privacy, given that so many sites are directed specifically at teenagers?

Leslie: There is such a need for a comprehensive privacy law, with penalties and enforcement mechanisms. We have to develop fair practices for their sector of the industry.

Kathy: We do want comprehensive privacy protection, and what we would call for are some measures within that larger framework that address the specific teen issues, since that audience might not be familiar with the data collection issues.

Leslie: But it can’t go down the road of requiring parental consent for teenagers.

Kathy: In terms of food marketing — and it is connected to the informational privacy questions — but it raises a whole different set of issues. We need to pay more attention to the marketing than we have.

Q: Lee Tien: I was intrigued about Leslie’s comment about the FTC using more of its power on fairness. If we imagine a situation where in the next year, essentially  nothing happens (which may happen), then is there a way for the FTC to more actively use the notion of unfairness. What procedurally would have to change? I think what we’ve been seeing is a sort of sustained unfairness towards the consumer. How hard is it legally, institutionally to take just what we know and make a case for these actions to be unfair under section 5?

Mary: Gave the definition of unfair under section 5. Traditionally “injury” has meant physical injury or economic harm. What we’ve been thinking about is whether “injury” can mean more — can it mean the creepiness or “ick” factor involved with online tracking and behavioral advertising? Looking at Sears — we saw the company collecting a lot of information when they said they would just track online behavior. We characterized this as deceptive, but what if they had not said they were going to track — what if they had just given consumers 10 dollars without telling them what they would collect. Could we have made a case for unfairness?

The definition is statutory, but the economic or physical injury standard is based on case law.

Leslie: My only addition is that looking at some fact patterns that gave rise to a lobby for a teen COPPA, is that so many of these behaviors turn over highly sensitive data. So it seems that the FTC should have the power to regulate these behaviors, and its frustrating to imagine that it might not.

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