Almost every company puts much money and effort behind social media strategy, with goals ranging from enhanced brand awareness to direct leads or sales. But while 97 percent of those surveyed said they use some form of social media marketing, only 37 percent reported being able to measure ROI—and this problem extends to even the largest marketers, 78 percent of whom said they struggle with this measurement.
While Facebook’s controversial algorithm changes late last year have given marketers migraines, a few heavy hitters have powered through and scored huge numbers.
Social vendor Shareablee reeled in stats for the top 10 branded Facebook posts in terms of total actions—the combined number of likes, comments and shares—so far for 2014. Sports-driven efforts make up more than half the list, with four of those revolving around one mega event: the FIFA World Cup.
The Super Bowl also ranked high, thanks to Anheuser-Busch’s endearing “Puppy Love” Clydesdale spot. But more than anything, the chart reveals that Facebook has become a TV-events-driven marketing vehicle to rival Twitter.
An increasingly popular category of social media presents an enticing but potentially risky proposition for brands eager to reach teens and young adults. Services such as Ask.fm, Secret, Whisper and Yik Yak let individuals communicate anonymously, boasting millions of highly engaged users, many in the 18-24 sweet spot for brands.
Marketers are putting their campaigns on these “anonymous apps” but proceeding with caution given the potential downside of appearing on platforms associated with cyberbullying, abusive content, teen suicide and, in the case of Ask.fm, reported recruitment by radical jihadist group ISIS. “As an advertiser, you always think about that kind of thing,” says Megan Wahtera, svp of interactive marketing at Paramount Pictures. Last month, the studio launched its first ad campaign in an anonymous app, tapping Whisper to help promote Men, Women and Children.
“The safety of our community is always a concern for us,” says Tom Fishman, vp of content marketing and social media at MTV, which has used Whisper to hype its quirky Virgin Territory.
Fishman notes that MTV has a long-running effort against abuse via digital media—dubbed AThinLine.org—so the network is sensitive to the issues swirling around anonymous apps. “Sadly, bullying seems to be an endemic social media dynamic regardless of the level of identity or anonymity,” he says. “It’s up to community managers and the platforms themselves to create safe spaces for conversation and engagement.”
But critics of anonymous apps say that’s exactly where they have failed to step up their game. They contend that such venues have been slow to address safety issues and believe that the category continues to pose a disproportionately high threat for bullying and malicious communications.
While each of the services is different in design and functionality, the most popular share similarities that give critics cause for concern. The apps largely serve as digital confessionals, encouraging users to share information they’d likely keep private if their identities were known. Users can share secrets on Secret, trade whispers on Whisper, yak it up on Yik Yak, or ask and answer questions on Ask.fm. Regardless of the format, they’re having conversations with other users, and the range of topics is broad. Trivial exchanges about clothes, cars, food, friends and entertainment abound. Discussions about sex and drugs are also fairly common. But troubling observers is the fact that abusive language and bullying behavior, while relatively rare, are persistent problems.
“My ethical compass is very uncomfortable with the anonymity,” says family therapist Karren Garrity, author of the book The Tool Box: Tricks of the Trade for Raising Teenagers. “While the intent may have been to create a place for personal expression, the way it is often being used is extremely harmful.” Garrity believes such apps “can be more problematic than the traditional, nondigital forms of harassing and taunting others. Once bullying becomes digital, it follows you everywhere—there is no sense of safety or protection.”
The Secret’s Out
Critics maintain that anonymity is a double-edged sword. While it lets the public frankly discuss issues they might not otherwise in an open forum, cloaking one’s identity leads some to believe they can tease and troll others at will.
This is especially true among kids, teens and adults in their early 20s—groups not known for their restraint and self-control. (The penetration of these apps is high among young people. Nine percent of Internet users ages 10-18 in the U.S. use Ask.fm on a daily basis, while about 5 percent utilize Secret, Whisper and Yik Yak every day, according to research data from McAfee.)
“They may be feeling power for the first time,” says anti-bullying activist Mike Dreiblatt, co-author of the book How to Stop Bullying and Social Aggression. “For some young people, that can be intoxicating. They don’t know when to stop. Cyberbulling and anonymous apps go hand in hand.”
As we all know, the ramifications can be devastating. The advocacy site NoBullying.com has linked seven teen suicides to bullying endured on Ask.fm. One highly publicized case involved 14-year-old English schoolgirl Hannah Smith, who hanged herself in August 2013. Her father blamed abusive posts on Ask.fm for driving his daughter over the edge. British Prime Minister David Cameron publicly lambasted the company, advising it to “clean up its act.” In an odd twist, a police official said at an inquest that Smith probably trolled herself, but the episode cast anonymous apps in a very bad light. The story resurfaced with a vengeance last month when Barry Diller’s IAC surprised industry watchers by acquiring Ask.fm. IAC now operates the service under the aegis of its Ask.com property.
The Ask.fm purchase came two months after a Daily Mail story alleged that a British ISIS fighter was using Ask.fm to promote recruitment. The paper reported: “A man calling himself Abu Abdullah Al Brittani gave detailed information on how Iraq-bound Westerners can exchange currencies to an Ask.fm user who described himself as ‘underage,’ said he had never traveled alone before, and expressed concern about his mother and father finding out.”
Ask.fm management told the Mail at the time that such usage violated its terms of service and that it would cooperate with law enforcement on the case.
But the episode proved to be yet another strike against Ask.fm in particular, and further sullied the anonymous apps category in general. Ask.com CEO Doug Leeds, who oversees Ask.fm for IAC, insists that he will do whatever it takes to make the service as safe as possible. He concedes that the acquisition carries risks, but says adding Ask.fm gives the company “a meaningful foothold in both mobile and social.” Ask.fm tallied almost 105 million mobile uniques in August; 45 percent of its active monthly users on mobile log in every day.
Along with the Ask.fm acquisition, a flurry of coverage about Secret last month put the anonymous app debate back on the front burner. Secret co-founder and CEO David Byttow was taken to task by news site PandoDaily for what its editors perceived as an uncaring attitude toward cyberbullying. Secret was also scrutinized by Fortune and Wired, while a Brazilian court ordered Apple and Google to remove Secret from their app stores in the country, where the product had been enjoying phenomenal growth.
Secret quickly implemented changes. Now, if the system detects suspicious keywords or images, the app gives users a chance to “re-think” posting that material. Its software also blocks posts that contain specific names. Byttow declined Adweek’s requests for comment, but in response to Pando, he said: “Suicide prevention is something we take very seriously,” adding, “We provide resources for users to either contact help via phone or online.”
Also last month, Whisper relaunched Your Voice, its nonprofit digital platform which will now serve as a means for users to share stories about their struggles with depression and other mental illnesses and, Whisper hopes, support each other with advice and information. The app’s founders have invested$1 million to support that mission.
Despite their risky rep, these apps present opportunities that are simply too irresistible to marketers. “It’s a way to access the millennial audience, and that’s a very difficult audience to reach,” says Eric Yellin, svp, content and distribution at Whisper, which, he says, boasts 6 billion monthly pageviews, with “a vast majority” of its audience ages 18-24. (Yellin says Whisper employs 130 content moderators and does not hesitate to delete posts or ban users if things get out of hand.)
Thus far, ads in the space are in the experimental stage. Yik Yak runs no ads at all. Gap ran a test on Secret in February. Ask.fm hosts banners, placed programmatically, from Allstate and Converse, among others.
Paramount’s Wahtera believes Whisper, meanwhile, was the perfect vehicle for promoting Men, Women and Children, which deals with the complexity of personal relationships and emotional isolation in the digital age. Adds MTV’s Fishman, “The target audience for us is young millennials, which Whisper attracts in droves. Whisper offers a unique space to engage in a conversation that’s very personal. People have outright thanked MTV on Whisper for airing a show so relatable to their experiences.”
Many expect anonymous apps to gain popularity as ad vehicles. Despite their flaws, they argue, the apps provide a needed outlet for honest conversation, especially in an era of more surveillance and political correctness. “There’s a sense of liberation and freedom that comes from expressing yourself openly and honestly, without judgment,” says Brad Kay, president of marketing agency SS+K. “As more people discover this, they’ll contribute more and more often to these platforms.”
David Chao, co-founder of VC firm DCM, chalks up the current controversy over the apps to growing pains, predicting “a handful of winners” will come to dominate the market. (Yik Yak, which launched late last year, has received an additional $10 million in funding in a DCM-led Series-A round.)
“These apps are demonized because they’re new,” adds Lee Tien, senior staff attorney at the Electronic Frontier Foundation, a nonprofit that supports digital rights. “There’s a tendency to blame the technology or the modality.” Working through issues like bullying and abuse, he says, “are part of the free-speech bargain. Those costs are something that we deal with. No right-thinking person says free speech has no cost.”
Sure Tumblr has an artsy, hipster appeal, but its users are far from starving. In fact, and perhaps surprisingly, it caters to the wealthiest social media set of any of its rivals, according to recent data.
The median household income of Tumblr’s users is $80,075, ahead of Twitter, Pinterest and Facebook ($79,562, $78,967 and $70,124, respectively), according to data provided by Tumblr. (Meanwhile, LinkedIn claims its users achieve an average household yearly income of $83,000.)
The relative wealth of Tumblr users has translated into dollars for retailers who attract traffic from the site. An Adobe report said that a retail referral from a Tumblr link is more valuable than a referral from Facebook, Twitter and Pinterest.
“Tumblr is small but mighty and offers retailers a visually stimulating environment,” said Tamara Gaffney, Adobe Digital Index’s principal analyst. “The fact that it produces the highest revenue per visit from mobile devices is likely due to its user base, which is skewed to young, trendy and well-educated urbanites with a greater affinity for online purchases and the disposable income to spend more.”
The average revenue per visit generated by a Tumblr referral to a retail site is $2.57 on tablets and 67 cents on smartphones, according to the latest Adobe Mobile Benchmark report.
The next valuable mobile social media referral comes from Facebook, where a visit is worth $1.55 on tablets and 42 cents on smartphones. Twitter is No. 3 and Pinterest is No. 4, per Adobe.
Tumblr’s impact on sales is one of its selling points to marketers, as is its high-end user base, which is relatively small when compared to the 1.3 billion on Facebook and 271 million on Twitter. Tumblr has about 14 million registered users in the U.S., reports eMarketer, which represents only a fraction of traffic to its site because not all visitors are logged in.
A brand report compiled by Tumblr in August shed some light on how its users make purchasing decisions from their dashboards, which are the hubs that display all their Tumblr content.
More than half of Tumblr users purchased something found on their dashboards, the report said, and 90 percent “have been inspired to buy something.”
They also tend to come back.
“Not only do our users have the greatest spending power, but they also spend the most time on our platform,” said Lee Brown, Tumblr’s global head of brand partnerships. “They are both engaged and active, taking that next crucial step to buy what they discover on Tumblr (and then post about it).
“The customer journey begins on Tumblr with prepurchase aspiration and ends on Tumblr for postpurchase celebration, making Tumblr the ultimate destination for shopping,” Brown said.
In June 2007, Apple changed its name from Apple Computers to Apple, a small change in wording that signified a vast shift in focus.
Distancing itself from the world of computing and productivity, Apple became a consumer-focused electronics company in entertainment, music and fun. With the launch of Apple Pay and the Apple Watch this week, we see another leap toward bridging the Internet and the real world—a very lucrative place to be.
We may think Apple’s game-changing quality comes from the products it makes, but the real profoundness comes from the new behaviors it enables and makes acceptable. Even the company's latest offerings—from phones to watches to payment services—are by any rational measure equal to the best of what’s out there. Apple, be it through its size, popularity, design or corporate power, dominates by changing how we all behave.
While not the first to imagine, design or create touchscreen technology, it was Apple alone that created a new behavior, leading to a generation of kids to gasp in horror if they can’t swipe, pinch and zoom on a TV or microwave screen.
Interestingly, Apple is very late to near-field communication, but it could unleash a new era in tapping where we expect the real world and the Internet to connect in a tactile way in key moments around us.
Now, marketing people may think that Apple Watches are a wonderful new playground for digital agencies and for app developers and mobile advertising agencies to get stuck in. They may expect a new breed of ultra mobile agencies to cram yet smaller ads onto the smaller screen, but that would be a big mistake for everyone. This affects all of us.
Marketing made huge mistakes around 2000 when we coined interactive agencies (later named digital) and kept creating new units as distinct verticals within our business. When social media followed, we did the same and replicated the approach again with mobile and content. It’s now likely that a small client may have 11 vertical agencies, from PR to content, advertising, digital, social, CRM, media and more.
What we should have done is consider new technology and new behaviors as horizontals that sweep across marketing, as digital becomes the oxygen that breathes life into ideas in all marketing channels. Social and content become a tool that can aid PR, CRM and advertising, while mobile also becomes a key horizontal to work across all channels.
The announcement of Apple Pay, the iPhone 6 with NFC, the Apple Watch and the soon-to-launch iOS8 holds meaning for everyone in the industry because it affects all marketing channels. It brings about new platforms, NFC—a new(ish) way for brands, retailers and people to connect and witness entirely new behaviors.
Consumer behavior is the bedrock of marketing, so it’s essential that we all understand what will be changing and how to explore it.
Here are three trends to consider:
A smaller focus: In the past 200 years, we’ve shifted from massive displays to ever-smaller devices, from movie screens to TVs to computers, smartphones and smart watches. Our vision narrowed down to a hyper-focused viewpoint, and from a “lean back" environment to a “lean forward,” and finally, to the “look down." We’re rapidly going in a direction where ads become more and more unwanted, so we need to move away from the interruption and engagement approach to adding value. How can brands add value in this new world?
Predictive approach to advertising: Increasingly, devices are recording more and more personal information, from our heartbeat to our locations, movements and intentions. Devices can now make more accurate predictions than ever about our known and unknown needs. How can brands find ways to use that information in order to provide value and service to consumers?
Gateway between the digital and real world: The smartphone and Apple Watch aren't about making calls or telling the time, but about connecting the real world with the Internet and all of our personal information that exists in the digital realm. Our focus now needs to be on how brands can explore this interface. How do we become more useful in this layer? Do we allow our rental cars to be picked up with a tap, do we apply a useful layer to payment data, and what do we do with coupons and ticketing?
We may not all care much about technology, but every marketer should be obsessing about what these new behaviors mean, what threats they create and what opportunities they open.
Tom Goodwin (@tomfgoodwin) is the CEO and founder of the Tomorrow Group
The automotive industry has long been viewed as the sweet spot for location-based marketing, with campaigns that track all parts of the car-buying process. But brands have been reluctant to publicize results tied to these efforts, especially when they include geo-conquesting—the tactic of poaching shoppers from the lots of competing dealers.
Now, Toyota Central Atlantic—which covers Pennsylvania, West Virginia, Maryland, Delaware, Virginia and Washington, D.C., dealerships—is joining with agency PivNet and mobile ad platform NinthDecimal to share results from the past year.
The Toyota ads target consumers who visit Ford, Chevrolet and Mazda dealerships, among others. The automaker claims a 45 percent lift in foot traffic via consumers who were served mobile ads compared to those who did not receive one.
The ads are then linked to car registration data, indicating whether a consumer bought a car after clicking on an ad. “We’re seeing many of the folks that produce this [online] traffic register new and certified used Toyotas in a region,” said Jay Pivec, PivNet’s president.
Still, some experts question the validity of the results. Chris Sutton, senior director of J.D. Power’s automotive retail practice, pointed out that mobile offers have to apply to a wide group of shoppers.
And shoppers tend to be brand loyal, noted Jeremy Lockhorn, national mobile lead at Razorfish. Said Lockhorn: “If I have gone through all my research and I know that I want to get a Mercedes E-Class, and I’m standing on the lot looking at the models … the likelihood that I’m going to see an ad on my phone and go buy a Lexus is very low.”
This is a lawsuit against Google over in-app purchases made by minor children, reminiscent of a similar lawsuit against Apple. Plaintiff on behalf of a putative class alleged that, among other things, Google allowed someone to make a purchase for thirty minutes (as opposed to Apple’s 15 minute window) after entering their account information and this meant her children racked up purchases.
Disaffirmance/contracts with minors: Contracts with minors can be disaffirmed, but the minor has to be the one who disaffirms the agreement. Here, plaintiff didn’t bring claims on behalf of her child, so she doesn’t have standing to disaffirm. Google makes a separate argument that the terms of service control all purchases made through the platform, and the terms say that account-holders are responsible for transactions conducted through their account (i.e., responsible for making sure no one misuses their password). Plaintiff tries to argue that the terms are ambiguous, but the court disagrees.
The court dismisses both of these claims.
Consumer Legal Remedies Act Claim: Plaintiff argued that Google failed to disclose material facts about the apps – namely, that although they were advertised as free (or at nominal cost), they could be used to make further purchases. The court also dismisses this claim, saying that while plaintiff adequately alleged a possibly misleading statement, or withholding of a material fact, she did not allege reliance.
Unfair Competition Claims: Of the various types of unfair competition claims, the court says that only her claim under the “unfair, deceptive or misleading” prong is adequate. The court liked plaintiff’s allegation that:
Google actively advertised, marketed and promoted certain gaming Apps as “free” with the intent to lure minors to purchase Game Currency in a manner likely to deceive the public.
The court declines to dismiss this claim.
Unjust enrichment: The parties argue over whether this is a standalone cause of action or a remedy. The court says, citing to the Apple in-app purchase case among others, that it will allow plaintiff’s to proceed with it at this stage.
Duty of Good Faith: The court allows this claim to go forward as well. Google argued that an implied duty of good faith can’t be used to contradict a specific term of the agreement (that account-holders are responsible for their activity) but the court disagrees. The provision regarding authorized charges merely allows Google to bill the account-holder, but plaintiff’s allegation that Google encouraged children to make in-app purchases is separate from this term.
This looks like a similar result to the Apple in-app purchase case. Apple settled that lawsuit and separately settled with the FTC as well. “Apple to Refund App Store Purchases Made Without Parental Consent.”
Normally, e-commerce companies don’t get bogged down in litigation over their practices, and it’s tough to pinpoint exactly what’s different here, other than perhaps the transactions involve minors. The C.M.D. v. Facebook case provided some clarity to contracting with minors (and allowed prospective disaffirmance), but a distinguishing fact here is the involvement of virtual goods. I’m not exactly sure how disaffirmance, if properly implemented, would play out here. Would you have to agree to deletion of the virtual good? But the cases end up hinging on a vague idea of a misleading practice, even though there’s very little fleshed out about what is misleading in the advertising and what statements are made by Google versus by the app developer. Maybe courts and plaintiffs think the platforms should take affirmative steps to prevent purchases, or give parents the option of additional controls? (See, e.g., “Morally Responsible Apps Are The Need Of The Hour“.) For what it’s worth, in the FTC’s action against Apple, Commissioner Wright issued a dissenting statement that asked whether it made sense for the FTC to crack down on Apple in-app purchases: “Dissenting Statement of Commissioner Joshua D. Wright; In the Matter of Apple, Inc.” [pdf].
[Note: between the ruling and blog post, Plaintiff filed an amended complaint.]
Case citation: Imber-Gluck v. Google, 14-cv-1070 (N.D. Cal. July 21, 2014)
Khan Academy wants to school you—and, for the first time, it's going beyond YouTube tutorials to do it.
“You Can Learn Anything,” its inaugural mass-marketing campaign, includes a 30-second spot made with Oscar-winning film editor Angus Wall (The Social Network) that will start airing Aug. 28 through a multimillion-dollar PSA donation from Comcast. The online education nonprofit teamed up with agency Enso on the campaign.
The TV spot features children learning a variety of skills, such as gymnastics and playing the cello.
Khan Academy launched classes for all ages in 2006, making it one of the first entrants in the video-lecture education space. Although edX, Udacity and Coursera are usually mentioned as its competitors, the brand mainly offers online versions of branded educational content from university or corporate partners. Khan Academy’s nonproprietary approach to content makes it more like massive online open course providers (MOOCs), such as Udemy or P2PU (Peer to Peer University).
Apart from the TV spot, Khan Academy’s “You Can Learn Anything” campaign includes banner ads, social media-seeded graphics with slogans such as “Failing is just another word for growing” and videos of people talking about the effort of mastering new skills.
The campaign page on the Khan Academy website also features videos with experts explaining the science behind the primary message that intelligence is not fixed—that the ability to learn is more a function of the willingness to be educated and to be persistent in the face of failure.
But the campaign doesn’t seem to have stumbled yet—the 90-second YouTube video (seen below) that was seeded last week has already garnered more than 500,000 views.
Plaintiffs are non-Yahoo email users who sent messages to Yahoo users. They allege that Yahoo’s email scans violate federal and state wiretapping laws and invade their privacy.
ECPA: This claim alleges that Yahoo “intercepts” the emails. ECPA is subject to two exemptions as relevant here. First, it’s a one-party consent statute; the consent of one of the parties is a defense. Second, interception must occur through a device, and the definition of device excludes the equipment used to transmit the message when used in its ordinary course.
Yahoo argued that there’s no interception because the emails were scanned when they were in Yahoo’s servers and thus in temporary storage, not in transit. The court says this argument is premature at the motion to dismiss stage and credits plaintiffs’ contrary allegation in their pleading.
While the court does not accept Yahoo’s argument about the nature of the interception or access at this stage, the court does agree with Yahoo’s argument that the terms of service supplies it with the necessary consent (i.e., Yahoo users agree to the terms of service and their consent is sufficient to defeat ECPA claims asserted by non-users who sent emails to Yahoo users). The court says that Yahoo’s contract formation process is relatively leakproof, in the sense that you have to click “I agree” in order to create an account, and that the “Yahoo Global Additional Terms of Service for Yahoo Mail and Messenger” adequately apprise users that their email is being scanned:
Yahoo’s automated systems scan and analyze all . . . communications . . . to, without limitation, provide personally relevant product features and content, to match and serve targeted advertising, and for spam and malware detection and abuse protection.
Plaintiffs argued that the language was not specific enough and that aspects of Yahoo’s conduct were not adequately described in the terms. The only point that gives the court pause is whether Yahoo’s disclosure makes clear that it stores content from emails for future use, and the court says this would be clear to an average user. Although Yahoo changed the language slightly to make clear it stored the emails, the court says even the previous language is sufficient:
The reasonable user would know that “scanning and analyzing” requires Yahoo to collect and store the email content. In other words, the Court finds it implausible that users did not – after agreeing, based on the ATOS, to Yahoo’s scanning and analysis of emails – realize that in order to engage in analysis of emails, Yahoo would have to store the emails…
The court similarly rejects plaintiffs claims about ambiguity within Yahoo’s terms about what types of “future use” Yahoo may engage in. (The court does grant leave to amend.) Ultimately, Yahoo’s terms of service supply it with a very useful consent argument against wiretapping claims.
SCA: Plaintiffs conceded that Yahoo had immunity for access to the emails since it was the service provider with respect to those emails, but they alleged that Yahoo improperly disclosed the contents of the emails to Yahoo’s partners and service providers in the advertising chain. While plaintiffs’ allegations are not very precise as to exactly what was disclosed, the court says they are sufficient (barely) under Twombly. The net result here is that the complaint squeaks by on the allegation that Yahoo improperly disclosed the “contents” of the emails, but plaintiff will have to develop facts and allegations around this down the road.
Yahoo raised a consent argument to the SCA claims as well, but Judge Koh says it wasn’t raised in Yahoo’s initial round of briefing so she declines to consider it.
California Invasion of Privacy Act: Yahoo argued again that the emails were not in transit and they were in storage and thus there was no interception while in transit. It also raised a preemption argument, saying that ECPA preempts the California statute if the California statute applies to emails that have already reached the provider’s servers. The court rejects both arguments and says that it must accept as true plaintiffs’ allegations that the emails were intercepted while in transit. The court declines to dismiss this claim.
California Constitution: The court dismisses this claim because plaintiffs didn’t allege that any specific, private, confidential information was accessed or disclosed. The generic access by Yahoo of emails is closer to typical commercial behavior than something outrageous. Many cases have held that routine access to information does not trigger a cause of action under the California constitution:
Plaintiffs do not cite, nor has this Court found, any case in the California or federal courts holding that individuals have a legally protected privacy interest or reasonable expectation of privacy in emails generally.
(See also Miller v. Meyers.) That said, the court grants leave to amend so that plaintiffs can show that the access or disclosure of specific emails or contents of emails was sufficiently egregious to warrant recognition of a claim.
This is a classic Judge Koh ruling. It holds the plaintiffs’ complaint up to detailed scrutiny, yet occasionally gives plaintiffs the benefit of the doubt. I don’t know if either side will be particularly happy with this result. On balance, it’s more helpful to Yahoo than to the plaintiffs. Whether or not this case turns into a big issue for Yahoo depends on what happens down the road. The Gmail scanning lawsuit started off with a bang, but fizzled out after Judge Koh refused to certify the class (this resulted in a chunk of it being settled). (See “Google Settles Portion Of Lawsuit About Gmail Ads”.)
Yahoo’s consent argument fares better than Google’s consent argument in the Gmail scanning case. That’s probably a result of Yahoo’s user agreement language being clearer, but it’s also possible Judge Koh got slightly more comfortable with the idea that consent can come via a terms of service. Whether a particular user consented was treated as a factually contested issue in the Gmail case; but here, the court looks at the language, decides what a reasonable consumer would understand, and makes a decision. Interestingly, treating consent as a fact-specific issue in the Gmail case was a barrier to initial dismissal of the case, but ultimately had a defense-friendly byproduct of precluding class certification.
So, what happens next is some procedural wrangling around plaintiffs’ efforts to amend their complaint and seek discovery, and Yahoo’s attempts to defeat class certification. The denial of a motion to dismiss a putative class action has not been a lottery ticket for plaintiffs. A slew of lawsuits have been defeated both at class certification and even at the summary judgment stage. The ruling already flags a key issue that could be resolved in Yahoo’s favor after factual development (whether Yahoo’s scanning technology accesses emails only after they were on Yahoo’s servers, or whether they were intercepted in transit). This would leave a small portion of the lawsuit, dealing with disclosure of the intimate or particularly confidential details from emails to third parties and whether this amounts to a violation of rights under the California constitution. The consent argument could be useful to Yahoo against this claim as well.
There’s also a core question lurking in the background, which is whether Yahoo’s disclosure and use of email contents, on a totally anonymized basis or by algorithm to target advertising, constitutes a violation of the statute. Does a disclosure have to identify a specific person, or does a human have to read or have access to the contents of an email in order for Yahoo to violate the statute? The search disclosure and anonymization cases offer some interesting parallels in this regard. See also, Bruce Boyden: “Can a Computer Intercept Your Email” [pdf].
Perhaps we shouldn’t be so nonchalant about companies scanning our emails for advertising and optimization purposes. At a minimum, it probably desensitizes us to government surveillance. (Part Two of Frontline’s series on privacy made some interesting points about this: “Privacy Lost“. It’s well worth watching.) But this lawsuit shows how difficult it is to assert legal claims based on this practice.
[Eric's comment: I see things 100% differently than Venkat's last paragraph. To me, I don't think email service providers desensitize us to government surveillance. Instead, I think chicken-scratch privacy lawsuits over private services that make our lives better (like tracking packages or flights) are a much more effective way to desensitize us to the disproportionately huge risks that we all face when the government intercepts our emails and surveils the people it's supposed to protect.]
Note: there was one part of the court’s discussion that I wasn’t clear on, and this involved discussion in Yahoo’s privacy FAQ about the disclosure of “objects” such as flight or package information. It’s unclear if this is intended to flag to subscribers that such information is being exchanged with airlines and delivery companies, perhaps to facilitate alerts, or to flag to subscribers that this information when exchanged with non-subscribers is subject to disclosure. As menial as a package number may sound (and while it’s awfully nice of Yahoo to our lives easier by disclosing this information to a third party to obtain a specific delivery date), for most people, this is the sort of thing that they would prefer companies don’t take care of for them.
Loosely related: The Tech War On Child Porn Is Not Limited To Google Scanning Gmail
Case Citation: In re Yahoo Mail Litigation, No. 13-CV-04980 (N.D. Cal. Aug 12, 2014)
Branding data is tough—and not just because many eyes glaze over when you start to talk about it. But in today’s media marketplace, it wouldn’t be wrong to think of the data world as a spreadsheety version of a gold rush, with everybody scurrying to stake their claim.
“At the early stages of anything, most people who are in that thing don’t understand it very well,” said Rick Erwin, president of consumer insights and targeting at Experian. In the gold rush analogy, Acxiom and Experian are the ’49ers—the guys who got there first, started buying data for the direct-mail market in the last century and showed everybody else how to do it when digital data collection became huge a few years ago. Advertisers have realized that big data is powerful; they’re also learning that it’s overwhelming.
“A lot of the value that’s created in the industry has nothing to do with the raw data—it has to do with combining the data into a better predictive model,” explained Scott Howe, CEO of Acxiom. His mission, he said, is to weigh and identify data correctly.
In essence, the Acxiom brand tries to soft sell the reality that consumers are on the grid. “A consumer should be able to say, ‘I don’t want to participate,’ but they shouldn’t be able to expect value for that,” he said. “I watch the Super Bowl every year for free on television. The reason I watch it for free is the ads.”
Privacy is a big part of branding for the two giants. Erwin touted the stringency of Experian’s internal standards for the info it buys, taking pains to avoid data of dubious origin. Because while credit info is regulated, marketing isn’t, and the companies keep those divisions walled off from one another.
“[Credit data] is regulated to a point where if it were to ever be even accidentally intermingled with the marketing data, the regulations … would immediately apply to the marketing data,” Erwin said. “That would kill the marketing data business.” Experian is a huge company, with a presence in 60 countries and $4.7 billion in revenue last year.
Acxiom, too, wants consumers on its side. Its strategy has been relative transparency. Register for the company’s About the Data tool, and it will show you what Acxiom thinks it knows about you—you can even correct it, so you will get fewer George Foreman Grill ads. And another part of both companies’ pitch is inevitability. Your data is known, therefore it’s for sale. Take your cut, or don’t.
“Think about the airline industry in the ’70s,” suggested Howe. “There were people who said, ‘I don’t care about the perks, I don’t care about the free beverages, I don’t care about the leg room, give me a better price.’ And at the end of the day, I’ll take the cheaper seats.”