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Advertising groups say online “opt-in” rules violate First Amendment

Is advertising protected speech? And can internet companies use your personal information in advertising without your permission?

These answer to these questions seems to be yes if you agree with the advertising trade associations that are asking the FCC to change its opt-in privacy rules for online service providers.

The Association of National Advertisers, the American Association of Advertising Agencies, the American Advertising Federation, the Data & Marketing Association, the Interactive Advertising Bureau, and the Network Advertising Initiative have petitioned the FCC to reconsider its decision to require consumer to opt-in to having data collected, shared and used.

The group contends the FCC’s order “imposes sweeping and onerous requirements” and “violates First Amendment protections of commercial speech.”

The Commission did this in a manner that unreasonably exceeds its statutory mandate by restricting a substantial amount of protected free speech counter to the First Amendment, and using a process that did not allow adequate notice and comment from interested parties.

The ruling in question requires providers to get opt-in approval from consumers in order to share customer information with any third party. The order, per the petition, includes information such as geo-location, children’s, health, and financial information, Social Security numbers, the content of communications, and all web browsing and app usage history information.

As someone that works in the advertising industry, I realize that’s a huge change and will cause major headaches for ad tech and the way things are currently done. But on the consumer side, it seems a no-brainer that companies should have to ask before they share your info, doesn’t it?

The group said in its filing, “This ecosystem has functioned well for years under an enforceable self-regulatory framework which is broadly supported by industry and widely recognized as a highly credible and effective privacy self-regulatory program.” The system works, they say, and allows consumers transparency about online data collection and a way to control the use of their online data “while allowing data-driven innovation to flourish.” I think a lot of consumers would disagree.

The group also says the FCC rules violate free speech. Part of its argument is that gathering information without consent and sharing that data with others is free speech.

“The Order imposes restrictions on… providers’ ability to use customer information for the purposes of commercial speech, without a customer’s opt-in to such use. As the Tenth Circuit held in U.S. West, effective speech has two components — the speaker and the audience; a restriction on either component is a restriction on free speech. The creation, analysis, and transfer of consumer data for marketing purposes constitutes speech. Non-misleading commercial speech regarding a lawful activity is protected under the First Amendment.” — Petition to FCC from Advertising Groups

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