United States: Mobile Application Privacy: An Overview Of The Recommendations From The FTC And The California Attorney General

Last Updated: August 20 2013
Article by Rebecca Eisner and Lei Shen

Keywords: mobile technology, privacy, mobile devices

Introduction

Mobile technology raises new and unique privacy concerns due to the unprecedented amounts and types of personal information that a mobile device can collect. As a result, consumer privacy on mobile devices has become an increasingly important issue, and mobile privacy has emerged as one of the key privacy topics this year.

Mobile technology raises new and unique privacy concerns due to the unprecedented amounts and types of personal information that a mobile device can collect.

Numerous agencies and organizations—both public and private—have issued or plan to issue guidance for mobile privacy best practices. Among the most significant of these developments are the mobile privacy reports released in 2013 by both the Federal Trade Commission (FTC) and the office of California Attorney General Kamala Harris. The FTC's report, Mobile Privacy Disclosures: Building Trust Though Transparency, and the California Attorney General's report, Privacy on the Go: Recommendations for the Mobile Ecosystem, both describe best-practice recommendations for mobile privacy. The reports offer specific guidelines for participants in the mobile environment, including platform providers, application developers and third-party service providers.

This article provides an overview of the recommendations provided by both the FTC and the California Attorney General.

What Is Personal Information?

The California Attorney General defines "personally identifiable data" as "data linked to a person or persistently linked to a mobile device," including data that can identify a person via personal information or a device via a unique identifier.1 Generally, personal information in the mobile space includes a mobile device's unique device identifier, geolocation data, a user's name, mobile phone numbers, email addresses, text messages or email, call logs, address books, financial and payment information, health and medical information, photos or videos, web-browsing history and lists of apps downloaded or used.2

In addition, a special subset of personal information called "sensitive information" is now recognized. The FTC views information concerning children, financial and health information, Social Security numbers and precise geolocation data as sensitive and warranting special protection.3 Likewise, the California Attorney General defines "sensitive information" as personally identifiable data about which users are likely to be concerned, such as precise geolocation data, financial and medical information, passwords, stored information such as contacts, photos and videos and information about children.4

Recommendations

Both the FTC and the California Attorney General provide specific recommendations for various participants in the mobile environment:

PLATFORM PROVIDERS

Provide Just-in-Time Disclosures: Platform providers should offer clear and understandable "just-in-time" disclosures to users and obtain a user's affirmative express consent before allowing an app to access the user's sensitive information (such as geolocation data). The FTC believes that providing such just-in-time disclosures at the time it matters to consumers (i.e., just prior to the collection of data by the app), rather than buried in a privacy policy, will allow users to make more informed choices about whether to share such data.5 The California Attorney General also recommends using similar "special notices" that would highlight any unexpected data practices (e.g., apps collecting sensitive information or personal information that is not needed for its basic functionality).6

Use Privacy Dashboards and Icons: Platform providers should consider using dashboards, icons and other visual cues to help users more easily and quickly recognize an app's privacy practices and settings.7 Such privacy icons and graphics are most effective if they are standardized and users are educated about them through an awareness campaign.8

Provide Access to Privacy Policies: Platform providers should offer a way for users to learn about an app's privacy policy prior to the user downloading the app, so that users will be able to make a more informed decision as to whether to download the app or not. Both the FTC and the California Attorney General recommend doing this by making an app's privacy policy conspicuously accessible from the platform itself. 9 The California Attorney General already made advancements in this area with its 2012 agreement with leading platform providers, where the platform providers agreed to include in their app submission process an optional data field for the app developer to add either a link to, a copy of or a short description of the app's privacy policy.10

Platform providers should offer a way for users to learn about an app's privacy policy prior to the user downloading the app, so that users will be able to make a more informed decision as to whether to download the app or not.

Provide Transparency About the Platform's App Review Process: The FTC recommends that platform providers clearly disclose the extent to which they review an app before making it available for download, including any compliance checks they perform.11 This recommendation likely stems from the FTC's complaint against Facebook, in which the FTC charged Facebook with deceiving users through Facebook's "Verified Apps" program. Facebook claimed it certified the security of apps participating in the program, when it actually did not.12

Develop a Do Not Track System: The FTC had previously recommended the development of a "do not track" system for web browsers that would enable users to avoid having their actions monitored online.13 Applying this same principle to the mobile space, the FTC recommends that platform providers develop a "do not track" mechanism at the platform level so that users can choose to prevent apps from tracking their behavior across apps and transmitting such information to third parties.14

APP DEVELOPERS

Provide a Clear, Accurate and Conspicuously Available Privacy Policy: App developers should have a clear and accurate privacy policy for their mobile app. The privacy policy should clearly identify the app's data practices, and important terms should not be buried in long agreements or behind vague links. Among the data practices that the privacy policy should cover are how the user's data will be collected, used, shared, disclosed and retained.

An app developer should also ensure that any promises made in the privacy policy are true and accurate. The FTC has taken action against many companies that claimed to safeguard the privacy or security of their users' information but did not fulfill those promises.15

Finally, the privacy policy should be conspicuously available and easy to read on a mobile device. The California Attorney General recommends having the privacy policy available both from the app platform (before the app is downloaded and any data is collected) and from within the app.16 While the small screen of a mobile device presents challenges in displaying privacy policies, app developers can consider using a layered privacy policy format that summarizes the most relevant privacy practices on top.17

In order to provide a complete and accurate disclosure to users, app developers should coordinate with ad networks and other third parties to fully understand the function of any third-party code being used in their apps.

It is important to note that California has a law (the California Online Privacy Protection Act, or CalOPPA) requiring mobile apps that collect personal information to conspicuously post a privacy policy, and the California Attorney General has started enforcing compliance. For example, in late 2012, the California Attorney General filed a lawsuit against Delta Airlines for failing to post a privacy policy for its "Fly Delta" app. Although a California judge recently dismissed the lawsuit on unrelated grounds, the setback is unlikely to deter the attorney general from pursuing other companies that do not comply.18

Understand Any Third-Party Code Included in the App: Even if an app developer provides clear and accurate disclosures about its own privacy practices in its privacy policy, app developers often include third-party code in their apps (e.g., from ad networks or analytics companies) without fully understanding what information that code may be collecting or sharing. In order to provide a complete and accurate disclosure to users, app developers should coordinate with ad networks and other third parties to fully understand the function of any third-party code being used in their apps.19

Limit Collection of Personal Information: App developers should build privacy considerations and protections into their apps from the beginning. This includes limiting the amount of personal information an app collects (e.g., minimizing the collection of information not necessary for the app's basic functionality), collecting or sharing sensitive information only with consent and limiting the retention of data to the time necessary to support the app's functionality or satisfy any legal requirements.20

ADVERTISING NETWORKS AND OTHER THIRD PARTIES21

The FTC recommends that advertising networks and other third parties that provide services for apps improve their communication with app developers (for example, by helping app developers understand what their code does and how it works, or by having a privacy policy and providing it to app developers). App developers would then be able to provide users with more complete and accurate disclosures.22 In addition, the California Attorney General recommends that advertising networks avoid delivering any ads outside of the app, such as by placing icons on the mobile desktop, and use enhanced measures to obtain prior consent before accessing any personal information.23

Conclusion

While all service agreements include a requirement for the service provider to comply with laws, this requirement may not be sufficient when mobile apps are involved. The mobile privacy landscape is rapidly evolving, and what are considered recommendations today are likely to become requirements in the future. In addition, if a service provider is only required to design a mobile app to comply with current laws rather than incorporating privacy protections from the beginning, the adaptation of any future privacy requirements will be unnecessarily difficult. This is especially true if maintenance of the mobile app is transferred from the service provider to the company after the expiration or termination of the service agreement. To resolve this concern, service agreements should require service providers to build in privacy considerations from the beginning and to comply with any best-practice recommendations from major public or private organizations, such as those contained in the reports from the FTC and the California Attorney General. While both the FTC and the California Attorney General have stated that the guidelines in these reports are only best-practice recommendations and not binding law,24 these recommendations are likely a sign of things to come. The recommendations may evolve into standards, and companies that fail to heed them may become subject to investigations and enforcement actions in the future.

Footnotes

1  Cal. Att'y Gen. Office, Privacy on the Go: Recommendations for the Mobile Ecosystem 6 (Jan. 2013), available at http://www.gsma.com/publicpolicy/mobile-andprivacy/mobile-privacy-principles .

2 Cal. Att'y Gen. Office, supra note 1, at 8.

3 F.T.C., Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers 59 (Mar. 2012), available at http://www.ftc.gov/os/2012/03/120326privacyreport.pdf .

4 Cal. Att'y Gen. Office, supra note 1, at 6. The European Union also recognizes certain "special categories of data" requiring extra restrictions, including data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and health or sex life. See EU Directive 95/46/EC art. 8 (1995), available at http://www.dataprotection.ie/viewdoc.asp?DocID=93&m= .

5 F.T.C., Mobile Privacy Disclosures: Building Trust Through Transparency 15, 16 (Feb. 2013), available at http://www.ftc.gov/os/2013/02/130201mobileprivacyreport.pdf .

6 Cal. Att'y Gen. Office, supra note 1, at 9.

7 F.T.C., Mobile Privacy Disclosures, supra note 5, at 17-18.

8 Cal. Att'y Gen. Office, supra note 1, at 11.

9 Id. at 14; F.T.C., Mobile Privacy Disclosures, supra note 5, at 22.

10 Press Release, Cal. Att'y Gen. Office, Joint Statement of Principles (Feb. 22, 2012), available at https://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-secures-global-agreement-strengthen-privacy .

11 Id. at 20.

12 See Press Release, F.T.C., Facebook Settles FTC Charges That It Deceived Consumers by Failing to Keep Privacy Promises (Nov. 29, 2011), available at http://ftc.gov/opa/2011/11/privacysettlement.shtm .

13 See Press Release, F.T.C., FTC Staff Issues Privacy Report, Offers Framework for Consumers, Businesses, and Policymakers (Dec. 1, 2010), available at http://www.ftc.gov/opa/2010/12/privacyreport.shtm ; Press Release, F.T.C., FTC Issues Final Commission Report on Protecting Consumer Privacy (Mar. 26, 2010), available at http://www.ftc.gov/opa/2012/03/privacyframework.shtm .

14 F.T.C., Mobile Privacy Disclosures, supra note 5, at 20-21.

15 See, e.g., Making Sure Companies Keep Their Privacy Promises to Consumers, http://www.ftc.gov/opa/reporter/privacy/privacypromises.shtml (last visited June 16, 2013) (listing several legal actions that the FTC has taken against organizations for misleading them with inaccurate privacy or security promises).

16 Cal. Att'y Gen. Office, supra note 1, at 9.

17 Id. at 11.

18 See, e.g., Kurt Orzeck, Delta Dodges Calif. Privacy Suit Over Smartphone App, Law360 (May 9, 2013, 10:09 PM), http://www.law360.com/california/articles/440392/delta-dodges-calif-privacy-suit-over-smartphone-app .

19 Id. at 24.

20 Cal. Att'y Gen. Office, supra note 1, at 9.

21 Note that the FTC report also provided recommendations for app trade associations and the California Attorney General's report also provided recommendations for operation system developers and mobile carriers. See, e.g., id. at 16.

22 F.T.C., Mobile Privacy Disclosures, supra note 5, at 24.

23 Cal. Att'y Gen. Office, supra note 1, at 15.

24 See, e.g., id. at 4; FTC, Mobile Privacy Disclosures: Building Trust Through Transparency, supra note 5, at 13-14.

Originally published in Summer 2013.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2013. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions