Pop-up advertising online: slaying the hydra.

I. INTRODUCTION

Eight years ago, the New York Times ran an article entitled, "First-Time Tourists Need a Pocket Guide to Downtown Internet." (1) The article was undoubtedly cutting-edge reporting at the time, but today it inspires the awe of an historical artifact. (2)

Indeed, the Internet has come a long way since the 1960s, when it was in its infancy stages as a small network of military computers. (3) The earliest indications of the World Wide Web as we know it today emerged in the early 1990s with the creation of a Unix system called Mosaic. (4) The development of Mosaic marked a pivotal moment in the evolutionary history of the Internet because Mosaic made it possible "to view graphics directly in the Web page, and [to experience] other media types, such as digital audio files and animation...." (5) These multimedia capabilities irrevocably transformed the Internet and helped sustain the pathways that have since expanded into the global information superhighway. (6)

When Mosaic was released there were only fifty Web servers and the entire World Wide Web could be explored within a few hours. (7) Shortly after the Internet made its commercial debut, however, enterprising marketers rushed to capitalize on this new medium. (8) Banner advertisements, (9) in particular, became a popular format during this early expansion period, (10) and to the dismay of many, have continued to dominate the online advertising landscape. (11) But as Internet consumers learned to tune out these banner images, advertisers began to employ more aggressive marketing devices to gain consumer attention. (12)

This Note will examine the proliferating use of some of these guerilla marketing tactics--the use of interstitials in particular--and consider the legal issues that are implicated by the use of pop-up (13) and pop-under (14) windows as these interstitials are now more commonly called.

In Part II, I will attempt to explain how interstitials function. In Part III of this Note, I will provide examples of how the spread of pop-up and pop-under windows has affected the online community, highlight the effects of this marketing device, and identify some of the reasons why the use of interstitials should be regulated. In the remaining sections, I will consider the applicability of existing federal statutes to this new marketing technique, and propose that because the Internet will continue to evolve, a hybrid of self-regulation and narrowly-tailored governmental regulation may be the most appropriate response.

II. THE MECHANICS OF INTERSTITIAL ADVERTISING

"Interstitial" generally refers to any browser window that has been programmed to load when the user attempts to transition from one webpage to another. (15) These interstitial windows are launched automatically by command lines, typically written in a programming language called JavaScript, that have been integrated into the webpage that the user is attempting to access. (16) There are primarily two categories of interstitials, inline and pop-up interstitials. (17)

Inlines appear most often in "immersive environments" where an interstitial window is used to display information that is somehow related to the visited website, such as "game-play information ... or advertisement opportunities...." (18) By contrast, pop-up interstitials, along with its fraternal twin, the pop-under, are "typically intended for advertisement purposes alone." (19) There are essentially no mechanical differences between inlines and pop-up interstitials, because both utilize the same technology to insert a webpage in the "narrow opening" of unused space and time that elapses as the consumer moves from the original webpage to the target webpage. (20)

The content-based differences between inlines and pop-up interstitials raise interesting questions as to whether these two devices should be treated differently. Due to the scope of my Note, however, I will refrain from exploring their distinctions at length, and focus instead on the advertisement-oriented uses of interstitial windows. The reader should further note that the term "pop ups" will be used to refer to both interstitial types throughout this paper, unless otherwise noted.

III. POP-UP ADVERTISING IN CONTEXT

The prevailing argument among many advertisers and marketers is that "pop-up ads are at worst an inconvenience that surfers better get used to if they want free content." (21) Though many Internet users concede that a free Internet unavoidably entails some exposure to undesirable elements, there is nevertheless a brewing antagonism against this particular advertising device. (22)

This resentment against pop-up advertising is well illustrated by the notoriety associated with X10.com's marketing campaign. Since early 2001, X-10 has inundated the Internet with pop-under advertisements designed to promote their wireless video cameras. (23) This campaign has enjoyed some success. It "reached 32.8 percent of the Web's entire audience between January 2001 and May 2001," (24) and elevated X-10's website to the fifth most visited site in the month of May 2001, ahead of other more widely known sites such as Excite.com and Amazon.com. (25) Nonetheless, marketing analysts have criticized X-10's approach by noting that "[i]nstead of making people aware and curious about the wireless camera, X-10.com's ads are simply annoying them." (26)

The irritation felt by Internet users has received considerable media attention. (27) In fact, X-10's marketing tactics have provoked such widespread consumer animosity that X-10 has devoted an entire Web page on its website to justify its use of these pop-under advertisements as 100% legal. (28)

What is intriguing about the X-10 campaign is not necessarily the notoriety it has attained, but the question that Internet consumers found themselves asking after repeatedly encountering X-10's advertisements: "`[c]an they legally do this'?" (29) This note proposes that one approach to answering this question is to identify the specific harms that are produced by this particular marketing device, and assess whether these harms are ones that the public should have legal recourse against.

Before we begin this analysis, it may be useful to first reconfigure our perceptions of the Internet, because terms such as "cyberspace" and "information superhighway" have the tendency to obscure the tangible aspects of the Internet. It is admittedly difficult to define the geographic parameters of the online community, but ignoring the physical structures that comprise the Internet only hinders the task of identifying the harms created by pop-up advertising. Our inquiry is better served by examining the similarities that exist between the Internet and more established means of communication.

In fact, some consumers have already argued that pop-ups on the Internet are "analogous to watching a TV and someone else is playing with the remote control. Suddenly, you don't know where you are and you have to wrestle with them to get control back to what you were watching." (30) There are technical similarities between broadcast television and the Internet, particularly since many cable television services utilize the already existing cable lines to provide their customers with high-speed Internet access. Many websites also behave like television stations, in the sense that they have utilized Internet capabilities to broadcast anything from news clips to music videos for the end-user to view. However, despite these similarities, this broadcast television/Internet analogy has its weaknesses. (31)

The primary defect in comparing the Internet to broadcast television is that the latter does not possess the distinctively interactive characteristics of the Internet. (32) Though there is emerging technology which attempts to transform the television viewing experience into a more interactive one, this is not yet the prevailing standard. (33) Moreover, to date, the television remains a strictly passive device that has been designed to receive rather than transmit information.

Another approach is to examine the Internet's similarities to telephone technology. (34) Several factors support this analogy. First, from a strictly mechanical standpoint, the vast majority of the public still relies upon dial-up connections, which utilize traditional telephone lines to access the Internet. (35) Second, and perhaps more persuasively, both technologies facilitate a bi-directional flow of information. (36) In turn, this interactive connection between two computers creates a type of dialogue that is akin to the conversations that take place over the telephone. (37)

Ultimately, it is crucial to recognize that the Internet possesses hybrid-qualities of both mediums, and resists fitting squarely within either category. (38) The value of these analogies is that they provide a tangible framework that aids our task of highlighting the harms of pop-up advertising.

A. Harm to the Consumer's Autonomy

The pop-up advertising device was specifically "designed so that consumers can't avoid them." (39) Thus, it is understandable that the common sentiment underlying consumer protest is that these tactics interfere with the Internet-user's exercise of free-will. (40) This intrusion upon the user's desire to be left alone in cyberspace is best demonstrated by the effects of a tactic that has been aptly named "mousetrapping."