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The Center of Digital Democracy joins 28 other media and social justice, consumer protection, civil liberties and privacy groups, asking the FCC to implement its broadband privacy rules and to reject industry calls to repeal the Order.

Statement of Jeff Chester, Executive Director Center for Digital Democracy February 7, 2017 For more than a quarter-century, Jessica Rich has played a critical leadership role at the Federal Trade Commission. She has made major contributions to the commission’s work on privacy and consumer protection—from leading the development of the rules for the 1998 Children’s Online Privacy Protection Act (COPPA), to conducting a series of recent enforcement actions to curb deceptive and unfair digital marketing practices that harm consumers’ credit and financial well-being. Rich has been particularly instrumental in holding corporate special interests accountable by bringing cases against Volkswagen, Western Union, Herbalife, Google, Amazon, Apple, and other companies. Rich’s departure raises serious concerns about the future of the FTC under the Trump administration. We fear that the agency will retreat from its central consumer-protection mission, by weakening the standards for regulatory safeguards, failing to address new cases brought to the agency, and ignoring the growing arsenal of disturbing Big Data practices that pose far-reaching threats to the public’s privacy, health, and security. At this critical moment, the agency must demonstrate courage and independence, standing up for consumer rights, and resisting any efforts to force a retreat from its public interest mandate.

This blog entry by Jeff Chester originally appeared on the Media Policy Blog of the London School of Economics and Political Science here. Influencers (link is external), native advertising (link is external), programmatic targeting (link is external), predictive algorithms (link is external), cross-device identification (link is external), immersive advertising (link is external), hyper-geolocation tracking (link is external), Big Data—all of these terms are part of the lexicon that is at the foundation of our digital lives. Led by Google and Facebook, but embedded deeply throughout the EU and the rest of the world, is a pervasive and far-reaching commercial surveillance complex. The potent and purposeful combination of contemporary consumer data gathering and analytic practices (link is external)—so called “Big Data”—with an ever-growing array of digital marketing practices, has been deployed globally to monitor, analyze, and influence our behaviors. The very digital devices and services we rely on—and which marketers openly claim we are often “addicted” (link is external) to—have been expressly designed to facilitate continuous data collection on all “screens (link is external),” including desktop computers (link is external), mobile (link is external) devices and (now) television (link is external). Information on and about our online and offline lives is fed into supercomputers, (link is external) where it becomes a potent mix of insights and other “actionable” details as our profiles are enhanced with a plethora of added details readily obtained from giant (link is external) one-stop-shopping “marketing data clouds (link is external).” The data collected on individuals (link is external) today include a far-reaching array of information (link is external) on how much money we make; what our health concerns are; what our race or ethnicity (link is external) is; how we spend our time (link is external) online and offline and what we do there; and much more. In milliseconds, decisions are made about our lives. Should we get an ad or offer for a credit card or payday loan? Do we likely have cancer or some other serious illness and are looking for treatments? What video game, film, sporting event ad or editorial content should we receive—whether “fake” (link is external) or from legitimate news sources? The data-driven digital marketing system is now also a major way citizens determine the fate of their nation, such as the vote on “Brexit (link is external)” and the U.S. presidential thumbs to buy, as Facebook puts it—is just one goal. So is using all the clout the digital giants and their allies can muster to get individuals and groups to embrace brands and products as part of their identity. Marketers are increasingly deploying new ways to influence our actions and emotions, including through artificial intelligence (link is external), virtual (link is external) reality, 3D video (link is external), cognitive computing (such as IBM’s Watson (link is external)), and the expanded use of neuromarketing. (link is external) The largely unchecked role that data-driven digital marketing plays in the lives of adults is troubling enough. But we should all be concerned about its impact (link is external) on young people. From undermining their privacy, to encouraging them to buy junk food, “pester” their parents to spend money, promote (link is external) products and brands to their friends by serving as influencers, or stealthily honing (link is external) their identity and social development to promote life-long brand loyalty, marketers and media companies are playing an important role shaping this and future generations of young people. One has only to see how digital marketing is being used by fast food (link is external) companies to peddle (link is external) junk food around the world—despite the youth obesity epidemic—to witness how these forces can undermine a person’s health and potential. Market researchers are constantly studying (link is external) how best to use the Internet, mobile devices, and social media to ensure ads and brand messages play an important—and unavoidable—role in children’s lives. While digital media offer children and adolescents important ways to learn, play, and communicate, they have also unleashed forces that require scrutiny, corporate responsibility, and regulation. One critical safeguard that both children and teens require is to have their privacy rights (link is external) respected. The European Union has a historic opportunity to implement its new General Data Protection Regulation (GDPR (link is external)) to ensure that there are meaningful controls for data gathered on youth. (The new law comes into force in May 2018.) Throughout the EU, companies (link is external) are using mobile phones, apps, social media, music streaming channels, YouTube, and more to entice “digital natives” to turn over their information. Data is the new “gold” and in the case of young people, worth some $1.2 trillion yearly in buying and influencing power. But different rules are required for young children versus adolescents. Affirmative consent from a parent or caregiver before data collection can occur from a child is one important safeguard. That’s because the business model of the digital industry significantly depends on a person not being able to effectively “opt-out” of the data profiling process. The default is collection. Google and other digital ad firms make their vast revenues ($178 billion and growing) (link is external) by being able to seamlessly gather our information without having to first ask, or being required to candidly explain what they do. (To see a glimpse of how Google or Facebook really work to help advertisers, see here (link is external) and here (link is external).) By first requiring truly informed consent, the process established by commercial sites (such as “read our privacy policy” if you can find or understand it (link is external)) breaks. As one of the two people (along with Prof. Kathryn Montgomery (link is external)) who led the campaign that resulted in the enactment of the Children’s Online Privacy Protection Act (COPPA) (link is external) in 1998, I know that in the U.S. the range and nature of digital marketing and data practices that occur once someone turns 13 (and is no longer covered by COPPA’s parental consent requirement) is starkly different than online marketing directed at children. You just don’t see on sites targeting children what you unfortunately discover nearly everywhere else. Although geolocation and other increasingly used tracking data), it’s not enough. The marketing practices designed to elicit the data from children and encourage parents to say “yes” also require public policies. In addition, adolescents require a different approach. While well meaning, the new provision in the GDPR raising the age for required parental consent from 13 to 16 is not the best way (link is external) to address the problem. It’s true that teens are a key target (link is external) for digital marketers in the EU and globally, both for their data and from the marketing opportunities that result. But young people should be able to participate effectively in the digital culture without having to ask permission first. The answer, I believe, is not merely encouraging Member States to vote to roll back the GDPR provision so they can set the age of consent back to 13 (link is external). What’s required is the development of rules that empower teens (link is external) to make their own decisions regarding data collection—in which they have the right to “opt-in” after being told how their data will actually be used. (Such disclosure, if honestly made, would serve as a cautionary tale for many young people, I believe.) The EU and Member States also need to craft an enforceable set of Fair Marketing Practices for the Digital Era that protects children and teens and ensures their rights (link is external) are respected (and which would be useful for the rest of us as well!). As we all know, the online marketplace targeting young people is booming, (link is external) with companies such as Google specifically creating sites (e.g., YouTube Kids (link is external)) where even the youngest (such as five and under) are encouraged to spend time. Growing investment in efforts (link is external) to lure children into digital environments, through games, video, and social media, along with ongoing technological innovation (such as immersive AI environments), will foster an even more ubiquitous and effective online marketing environment. Given their historic commitments to data protection, human rights, and the rights of minors (link is external), the EU and Member States should play a leadership role ensuring that the commercial marketplace engages young people in ways that truly respect their privacy and enhance their well-being.

This report provides a snapshot of five categories of marketing tactics used by fast food, snack food, and soft drink companies to target children and adolescents. These categories include: 1) creating immersive environments; 2) infiltrating social networks; 3) location-based and mobile marketing; 4) collecting personal data; and 5) studying and triggering the subconscious. Descriptions of these categories along with examples from the food and beverage industry are provided. The report concludes with a discussion of what advocates can do to protect children and adolescents from these harmful marketing tactics.

This report examines trends in digital marketing to youth that uses "immersive" techniques, social media, behavioral profiling, location targeting and mobile marketing, and neuroscience methods. Recommends principles for regulating inappropriate advertising to youth.

Re: Exploring Special Purpose National Bank Charters for Fintech Companies Dear Comptroller Curry: The Center for Digital Democracy and U.S. Public Interest Research Group (U.S. PIRG) agree with the consumer, civil rights, and community groups and their separately filed group letter in which they expressed strong opposition to the proposed new federal nonbank lending charters. U.S. PIRG also signed and concurs with the detailed comment from National Consumer Law Center et al. The Office of the Comptroller of the Currency (OCC) must not undermine state rate caps; must not weaken states’ ability to oversee lenders and act to prevent harmful lending practices; and the OCC must not undermine efforts to provide fair and inclusive lending practices, particularly for people of color and low- and moderate-income consumers, in the areas where they operate. Further, the OCC must not allow nonbank lenders to engage in practices that violate privacy rights, or engage in unfair data and marketing practices. State laws often operate as the primary line of defense for consumers and small businesses. The OCC’s charter proposal inadequately protects consumers from these harmful practices and it should not take state law enforcers off the beat of preventing these practices. Center for Digital Democracy and U.S. PIRG file this supplemental comment to focus on the digital rights and consumer privacy concerns raised by the use of opaque Big Data algorithms used by Fintech firms. These practices increasingly threaten consumer privacy and the OCC must also take them into account when considering non-bank special purpose charters. An ongoing and increasingly challenging issue confronting citizens and consumers is the new threats to their privacy and their ability to control how personal and non- personal data about their online and offline behavior are collected and used by online financial services companies. The use of personal data by Fintech companies is pervasive and touches every aspect of their business operation, including marketing, customer loyalty management, pricing, fraud prevention, and underwriting. Fintech companies use many new on- and offline data sources, either directly collecting data from consumers or relying on third parties for Big Data analytics to classify consumers and to make predictions about them. Assigning individuals to socially constructed classifications and then making inferences about them based on group profiles is likely to have consequences that are not well understood and may further increase social inequities. Consumers’ privacy is increasingly undermined and no adequate protections are in place. The OCC must not allow an expansion of these practices via a federal charter that does not provide for adequate privacy safeguards. The OCC must proactively investigate unfair marketing practices and not grant national licenses without affirmative protections. Fintech companies are using Facebook, Instagram, and other digital behavioral data that combine data and interactive experiences to influence consumers and their social networks. Sophisticated data-processing capabilities allow for more precise micro-targeting, the creation of comprehensive profiles, and the ability to act instantly on the insights gained from consumer behaviors. Targeted and highly personalized marketing offers can be intrusive and foster consumer behaviors that are not in the best interest of the individual. Behavioral science shows that consumers are susceptible to ‘nudges’ which raises concerns about the risk of financial institutions taking advantage of the behavioral biases and limitations of consumers. Increasing personalization which Big Data makes possible, could also reduce the comparability of products, making it harder for consumers to compare one offer with another which could have an impact on market competition. Similarly, lack of transparency around the processing of data and automated algorithms may lead to increasing information asymmetries between the financial institution and the individual and thus consumers are left with less awareness and a lack of understanding and control over important financial decisions. These practices happen behind the scenes and can only be addressed by a vigilant regulator. The OCC should not allow fintech companies to operate a national license without properly addressing these data practices. The OCC must also not allow nonbank lenders or partner depository institutions to engage in unfair and discriminatory lending practices. The use of ‘alternative data’ sources can be the cause of bias or contain errors and may lead to consumer harm or unfairness. While alternative credit scoring can be a boon for the underbanked, there need to be standards and safeguards to ensure that any new data are not biased and that their use may not lead to unintended consequences. While industry has argued that increased automation will help expand access to credit and lower costs overall, credit models that are more “accurate” may lead to a more stratified society, as it will leave those at the bottom potentially excluded from credit forever. Models that judge individuals against group profiles based on past data inevitably incorporate elements of past inequality and discrimination. Communities of color are thus most vulnerable. Unless additional policies are put in place to address these consequences, inequality is likely to become more entrenched the more we rely on models for risk evaluations. Fintech platforms must comply fully with the requirements of the Fair Credit Reporting Act and Equal Credit Opportunity Act. In conclusion, the OCC must not grant new federal nonbank lending charters that would give firms free rein to use unfair data and marketing practices. Instead the OCC must proactively mitigate risks from unfair data, marketing, and lending practices that threaten to undermine privacy, consumer rights and economic inclusion. Sincerely, Jeff Chester and Katharina Kopp Center for Digital Democracy Edmund Mierzwinski U.S. PIRG Recommended further reading: BIG DATA MEANS BIG OPPORTUNITIES AND BIG CHALLENGES: Promoting Financial Inclusion and Consumer Protection in the “Big Data” Financial Era U.S. PIRG Education Fund and Center for Digital Democracy, 27 March 2014 Available at http://www.uspirg.org/reports/usf/big-data-means-big-opportunities-and-b... (link is external)

This report describes and provides examples of the types of digital marketing research utilized by the food and beverage industry and the potential effects it has on the health of children and adolescents. Researchers found that food and beverage industry, together with the companies they contract, are conducting three major types of research: 1) testing and deploying new marketing platforms, 2) creating new research methods to probe consumers’ responses to marketing, and 3) developing new means to assess the impact of new digital research on marketers’ profits. Researchers also found that industry puts this research into action, specifically through its efforts to target communities of color and youth.

Edith Ramirez brought the FTC into the 21st century. Under her leadership, the agency made it clear that new technologies had to treat consumers fairly, including when it came to protecting their privacy. Through enforcement, litigation, and publicly exposing new threats, Edith Ramirez’s commission has created a unique consumer protection legacy that will have a long-lasting and positive impact. Ramirez’s tenure has also been marked by a strong commitment to protecting economically vulnerable and other at-risk consumers, including those who reflect the country’s diversity. More than any other federal agency, Ramirez’s FTC understood how the emerging “Internet of Things”—where we are always connected online—provided both a promise and a threat. Through a series of cutting-edge cases—Snapchat, (link is external) D-Link (link is external), inMobi (link is external) and Turn (link is external), for example—the commission made it clear that tech companies that deceived consumers or failed to protect their security would be punished and publicly shamed. Companies, including Amazon (link is external), Google (link is external) and Apple (link is external), that failed to ensure that consumers who purchased apps had been treated fairly had to change their practices. New and deceptive ways in how companies advertise to the public also came under her scrutiny, including the role of “influencers.” Cases included Machinima (link is external) and Warner Brothers (link is external), for example. Ramirez assembled a highly effective and strategic consumer protection team, led by bureau director Jessica Rich. The commission played a major role in the $10 billion settlement with Volkswagen (link is external), and also pursued cases where vulnerable consumers had been financially harmed (such as DeVry (link is external) University and Cancer Fund of America (link is external)). It also took on challenging cases to make it clear that the agency had the authority and responsibility to proactively act in the best interests of consumers (e.g., Wyndham, (link is external) Herbalife, (link is external) and Lifelock (link is external)). Ramirez cast a spotlight on emerging privacy issues involving “smart TV’s,” cross-device tracking, and other technologies. The agency also created a new Office of Technology Research and Investigations, within the Bureau of Consumer Protection, to stay on top of digital media and data developments. Finally, Edith Ramirez understood that all Americans require effective consumer protection. Under her leadership, the FTC expressly reached out to Hispanics, African Americans, and others in order to involve them in the work of the commission. Jeff Chester, CDD