US privacy petition could be good news for Canadian users of mobile devices

Canadians traveling to the United States, or visiting a U.S. website, will be affected by a petition to the Washington DC-based Federal Trade Commission (FTC) to get tough on mobile marketers and consumer privacy, some experts say. And while consumer protection laws are more stringent here in Canada, a Montreal lawyer says it's time all governments considered a global framework to protect consumers from mobile marketing practices. The January petition by the Centre for Digital Democracy and US Public Interest Research Group focuses primarily on behavioral targeting, location-based targeting, user tracking/mobile analytics, audience segmentation and data mining. The groups are also asking the FTC to redefine consent and disclosure requirements for mobile data collection and the redefinition of "unfair and deceptive" practices in mobile marketing. They claim policies governing consumer privacy on the mobile web have failed to keep pace with new marketing practices. "If the US doesn't have a privacy framework then advertisers from the US could be gathering my personal information without my knowledge. What kind of recourse would I have if they don't have any laws to protect me?," asks Eloise Gratton, a privacy lawyer with Montreal-based McMillan LLP and a past member of the Privacy and Consumer Acceptance Committee of the North American Mobile Marketing Association (MMA). Experts stress that Canada has comprehensive legislation in place to protect Canadian consumers, including third party oversight, a privacy commissioner and a framework. But these laws won't protect consumers when they travel to the US or visit a US web site. "This petition will impact Canadians in the sense that a lot of information is being gathered from US players. And when you're talking about mobile devices, people are roaming. They are going into the US, or using their Blackberry to go to a US website. The question is, are they complying with the privacy laws in Canada? Maybe they are, maybe they aren't. It's more of a global problem," she says, adding, one solution is to develop a global framework for mobile marketing and privacy. Last year, for example, the MMA released a global framework for mobile advertising, including guidelines for improved formats around the mobile web and new rules and restrictions for messaging (including SMS and MMS). The guidelines received support from industry associations in the UK and Mexico, among others. Canada's Privacy Commissioner studying voluntary practices Nicholas Whelan, a privacy lawyer with Toronto-based Stikeman Elliott LLP, agrees Canadians are better protected, pointing to the Personal Information Protection and Electronic Documents Act and provincial privacy legislation in BC, Alberta and Quebec. "I think what they were talking about in the FTC petition is third party aggregators who somehow get all this information and then put it together and resell it to advertisers. I think it'd be harder to do that in the current Canadian legal framework, while complying with the law," he explains. The Canadian legal framework has been so effective, in fact, that the Office of the Privacy Commissioner has not received a single complaint or inquiry related to mobile marketing. "However, it is an issue that is of interest to us and we are in the initial stages of studying it," says Heather Ormerod, a spokesperson for the office. They are reviewing some of the industry's voluntary practices as well as "more advanced mobile markets, such as Japan, to see how they are developing and to determine what types of products and issues we can expect to see in the future." Ed Cartwright, senior director of communications at the Canadian Marketing Association says they also haven't received any consumer complaints about mobile marketing and how their information is being used. "We're looking at mobile marketing right now through our ethics committee and trying to get our head around it. We haven't taken a position on this (petition) for example, but we certainly agree with the issue of being transparent and telling consumers how their information will be used and what have you." Consent is an issue in the groups' petition to the FTC and also in Canada. While Canadian law requires organizations to communicate the purposes for which the information is being collected, use the information only for the purposes identified, and obtain consumers' consent to acquire the information, there is no clause saying exactly how this consent must be achieved. Gratton says companies can easily trick consumers into giving consent. "Let's say you download a ringtone on your cellphone, and maybe there's a hidden clause somewhere, that says you agree to receive certain advertising messages or you agree to be tracked," she explains. "In my view, I'm not sure when it comes to disclosure and consent that it should be gathered through mobile devices. It's a small screen. I highly doubt that you can provide a decent disclosure. Maybe, all the consent should be gathered through the carriers or a contract at a point of sale," she adds. In December, Rogers Communications filed an application to the CRTC to have unsolicited SMS and MMS considered telemarketing telecommunications governed under Canada's Unsolicited Telecommunications Rules, and do-not-call registry. If successful, cellphone users would be better protected than email recipients, as emails aren't covered under this law. While Rogers did not return calls for comment, Whelan offers some potential motives for the application. "Maybe all Rogers is looking for is a declaration that this is currently the law, and provide some clarity. I don't work for Rogers, so I don't know but their complaint is "we just need to know, are these unsolicited telecommunications? So if someone does it, we can stop them and if someone uses our network and causes us harm by taking up resources." "The other thing is that in Canada, people tend to pay for SMS. So there may be another type of claim that someone has caused you harm," continues Whelan. "And if someone causes you harm you can have legal action, not because somebody invaded your privacy, but because you never asked to receive the message and now you have to pay for it (in terms of an incoming message fee)."

US privacy petition could be good news for Canadian users of mobile devices

Broadcast | February 2, 2009

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