Privacy protections can take many forms. These include rights to access and correction of false or incomplete data as well as limitations on how data are used. Privacy laws create rights and obligations concerning data. The “anti-marketing laws” are different: instead of regulating data use or collection, they limit how businesses contact individuals. Originally enacted to help protect against misuse of limited bandwidth resources, anti-marketing laws now are more important to shielding individuals’ attention from overwhelming numbers of commercial offers and other distracting messages. As such, these are privacy problems that speak to seclusion and access to the self, rather than issues surrounding fair treatment of data.

Anti-marketing regulation has many complex attributes, including opt-in and opt-out restrictions, advertiser liability, bond requirements, labeling requirements, and even criminal sanctions for some kinds of activities. Anti-malware efforts, still governed by Section 5, are similar to the online privacy cases visited in Chapter 6.

In political debates, the value of “technology neutrality” is often touted. However, anti-marketing laws tend to be technology-specific. That is, anti-marketing laws focus on how a company uses a specific method or technology to contact an individual. This approach reflects the reality that different marketing technologies present varied opportunities for regulation. For instance, an opt-out registry to avoid telemarketing was a fantastic success, while the FTC determined that such an approach to police e-mail would be perverse. Technical specificity also means that as technology produces new means to gain one's attention, existing rules may not capture new forms of annoyance.

First Amendment concerns also require technological specificity in marketing regulation. Historically, the Supreme Court has permitted different levels of government intervention based on the medium involved, such as broadcast, newspapers, and internet. Technologies such as the phone and e-mail impose different costs on the speaker and recipient and afford different opportunities for preventing or shifting those costs. Thus, a technology-neutral marketing law could only be written in a vague way, perhaps mandating a right to block being contacted in principle, but without specifying the mechanism for such blocking.

Anti-marketing laws bring into contrast the regulatory approaches favored by the FTC and the market-based approaches favored by economists, including those at the FTC itself. The lawyer-driven tradition of the FTC militates in favor of intricate, seemingly impossible-to-circumvent restrictions on marketing. But, somehow, clever marketers find ways around the rules.