Document Type

Article

Publication Date

2023

Abstract

This Article is about how biometric data collected through VR technologies will greatly exacerbate existing problems with political ad microtargeting. Commercially available VR devices can—and in some cases, must—be integrated with sensors that track users’ eyes, faces, hands, and bodies. Political campaigns will be able to leverage this data to target ads with extraordinary precision. Indeed, targeting ads with biometric data may well be the next step in the evolution of microtargeted political messaging—a practice that has contributed to a rise in disinformation, filter-bubbles, and privacy invasions. If this sounds like science fiction, it is closer than you may think. Ad platforms have a tremendous financial incentive to improve the accuracy of their predictions about user preferences; consumer researchers already use biometric monitoring to test advertisements; campaigns have long incorporated data about voters to shape messaging; and candidates are already experimenting with VR and related technologies. Nonetheless, a formidable obstacle awaits policymakers who try to curb this ad-targeting practice: The Supreme Court’s First Amendment jurisprudence. After examining the ad-targeting practices described above, this Article warns that current Speech Clause doctrine will cast doubt upon laws that limit political ad microtargeting. As a result, policymakers must take extraordinary care in designing such laws, and reformers must pursue private-sector solutions as well.

Publication Title

First Amendment Law Review

Volume

21

Issue

2

Article Number

1154

First Page

167

Last Page

221

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