The nonstop sell in the land of the free.
This May, documents from an internal Facebook report leaked to the press. In the report, Facebook executives boasted of Facebook’s ability to monitor posts and photos in real time to determine what young users are feeling and when. The company claimed that it could identify a host of emotions in its users, including “stressed,” “defeated,” “overwhelmed,” “anxious,” “nervous,” “stupid,” “silly,” “useless,” or feeling like a “failure.” It was implied that such information could be used by eager marketers, for the right price. Facebook initially apologized, admitting that it was wrong to target the emotional susceptibilities of young people. But it quickly backtracked, contending that the report was innocently meant “to help marketers understand how people express themselves on Facebook,” and that the analysis had not been operationalized to actually match ads to teenagers exhibiting these particular frailties.
The ability to accurately target consumers based on their individualized emotional states represents a potential game changer for commercial persuasion.
The leaked report reveals a new front in the longstanding battle between advertisers and consumers. As with many other profitable entities of the new millennium, Facebook’s business model depends on convincing businesses that it offers a new, more effective and efficient means of reaching potential customers. Advertising revenue is the lifeblood that pumps through Facebook’s corporate veins. Advertisers have long tried to capitalize on audience insecurities. Mouthwash and toothpaste makers tell us that our love lives and job prospects hang in the balance if we do not confront the specter of halitosis. Super Bowl ads feature cute babies, triggering concerns about the safety of our children to the benefit of tire makers and life insurance companies. But the ability to accurately target consumers based on their individualized emotional states represents a potential game changer for commercial persuasion.
Emotional segmenting is just one new strategy employed by advertisers today. Location-tracking technologies shadow shoppers, enabling the delivery of ads at critical moments. A thriving marketplace for celebrity selling on social media leverages the sociality and seeming spontaneity of Twitter and Instagram to camouflage the mercenary motives of brand spokespersons. Meanwhile market research is increasingly turning away from the conscious dialogue of focus group interviews, instead using neuroscience to measure our unconscious, involuntary biological responses to products and advertising.
Emerging tactics of commercial persuasion, from algorithms to consumer surveillance, may yield strong returns for marketers, but they show little respect for human autonomy. This raises the question, how should the law deal with marketing innovations that threaten to upset the balance of power between advertisers and consumers? This is a difficult question, but reformers do not need to start from scratch: A sophisticated legal apparatus already exists to balance commercial freedom with consumer protection. In trying to understand the law’s response to the marketing technologies of today, I examined a century of skirmishes between advertisers, consumers, and legal actors in the United States. These battles over marketing innovation have created a sprawling ecosystem of laws and governmental and private regulators.
There are two particularly notable aspects of this ecosystem. The first is that this American story of advertising regulation relies on private regulation to a significant degree, whether through lawsuits by aggrieved competitors or reform projects sponsored by the advertising industry itself. This differs from other nations, which are more willing to turn to government oversight. Even so, the United States’ advertising law framework also depends on a variety of government regulators, consumer protection laws, and judicial doctrines designed to keep the relationship between advertiser and audience in balance. The second key feature of this ecosystem is that it does not reflect careful planning so much as the sum total of a series of conflicts between advertisers utilizing new technologies for selling and a buying public opposed to such commercial initiatives.
American advertising regulations do not reflect careful planning so much as the sum total of a series of conflicts between advertisers and a buying public.
In the early 1900s, for instance, mass marketers used the new technology of photography to suddenly thrust the faces of unaware everyday citizens before the public in national advertising campaigns. State courts responded by creating a new right of privacy to restrain these overzealous advertisers (and the newspapers and magazines they placed their ads in). For early twentieth-century judges, the ability to distribute a person’s image on a mass scale represented an unprecedented threat to personal dignity and autonomy. A Georgia Supreme Court decision analogized advertisers’ use of someone’s face without their approval to enslavement by a “merciless master.”
In 1957, a Manhattan marketing executive claimed to have successfully screened an “invisible commercial” that flashed messages at the audience for only one three-hundredth of a second. Congress and the Federal Communications Commission conducted hearings. Legislators began crafting legislation to ban the practice and even impose prison sentences on violators. Responding to the government pressure, the three television networks of the time as well as the National Association of Radio and Television Broadcasters effectively ended subliminal advertising before it had even really started. Years later, it was revealed that the marketing executive’s claims were false, that the “invisible commercial” was a hoax meant to drum up business for his consulting firm. However, in terms of the advertising law ecosystem, the public uproar over subliminal advertising produced new limits on how advertisers could try to sell their wares to the public.
The question is whether the advertising law ecosystem will evolve to address the newfound ability of entities like Facebook to take our emotional temperatures.
Although the law currently offers little to protect social media users from the threat of individual emotional targeting made possible by Facebook and others, these historical episodes reveal narrative frames that might be reactivated by today’s aggrieved consumers. For judges confronting advertisers’ use of the new technology of photography, visions of consumer dignity outweighed concerns over government paternalism. The scare over subliminal advertising reflected a belief that the technique crossed the line from acceptable persuasion to unacceptable manipulation of consumer desires.
The question is whether the advertising law ecosystem will evolve to address the newfound ability of entities like Facebook to take our emotional temperatures. Three years ago, it was revealed that Facebook conducted a massive secret experiment on 700,000 of its users, manipulating their news feeds to assess whether positive or negative sentiments are contagious. (It turns out they are.) The only reason the experiment came to light was because its results were published in an academic journal. Despite treating its users as guinea pigs, Facebook suffered no legal repercussions.
Surveys reveal that a majority of Americans object to commercial online tracking practices. My guess is that they would object even more strongly to tracking the emotional susceptibilities of teenagers. Yet these sentiments have not been translated into political action. Instead, judges and legislators seem increasingly willing to trust consumers to figure things out and are distrustful of government-led solutions. The narrative of a mythical venture consumer dominates much of the recent discourse on advertising innovation. This is a consumer that can somehow rationally calculate the trade-off between privacy and convenience despite Facebook and other online entities’ best efforts to keep their collection and use of consumer information purposely opaque. Better to let consumers fend for themselves, the argument goes, than to allow paternalist government actors to corrupt the marketplace and usurp personal choice.
Whether this narrative of government paternalism will eventually be supplanted by others more sympathetic to government intervention, I cannot say. But the relationship between law and advertising needs to be dynamic. Marketers will constantly adjust their means for reaching the public, both for good and ill. Legal solutions that worked decades ago cannot necessarily adjust to the technologies of the present. The advertising law ecosystem needs to evolve, as it has multiple times in the past.