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ALERT. MOBILE MARKETING AND PRIVACY: NEW DEVELOPMENTS. Privacy issues ... Give users tools that offer choices in ... monitoring software on a mobile.
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SEPTEMBER 2012

ADVERTISING, MARKETING & PROMOTIONS

>> ALERT MOBILE MARKETING AND PRIVACY: NEW DEVELOPMENTS Privacy issues have long been a concern to members of the mobile marketing industry. However, a number of recent developments have brought these issues to the forefront as regulators, lawmakers and consumers begin to pay closer attention to the methods currently used to collect and use data in the mobile environment. A guide for mobile app developers just released by the Federal Trade Commission (FTC) and ongoing negotiations on mobile privacy between the U.S. National Telecommunications and Information Administration (NTIA) and other industry stakeholders highlight the continuing need for mobile marketers to focus on consumer privacy issues.

FTC’S NEW GUIDELINES The FTC’s new guide, “Marketing Your Mobile App: Get It Right from the Start,” discusses general principles that the FTC says all mobile app developers should consider adopting.  The guide first contains suggestions relating to “truthful advertising.” It then recommends a number of privacy principles for mobile app developers, saying they should: >>> Build privacy considerations into apps from the start, which the FTC calls “privacy by design”; >>> Be transparent about data practices and explain what information an app collects from users or their devices and what is done with that data;

>>> Give users tools that offer choices in how to use an app, such as privacy settings, opt-outs, or other ways for users to control how their personal information is collected and shared; >>> Honor privacy promises such as assurances to users about the security standards that apply or what happens to their personal information, and obtain users’ affirmative permission for material changes to privacy practices;  >>> Follow the requirements in the Children’s Online Privacy Protection Act (COPPA) and the FTC’s COPPA Rule regarding parental consent and the obligation to keep personal information collected from children confidential and secure where apps are designed for children or where developers know they are collecting personal information from children;   >>> Collect sensitive information – e.g., medical, financial, or precise geolocation information – only with users’ affirmative consent; and >>> Take reasonable steps to keep sensitive data secure.

THE BOTTOM LINE The situation for mobile marketers and mobile app developers relating to privacy rules continues to be fluid, with multiple parties – and government regulators – seeking to work towards, or to impose, new requirements. It is therefore incumbent upon industry participants to consider these issues whenever engaging in any activities involving mobile services.

These themes are similar to those raised by the FTC in other parts of the interactive industry.

NTIA NEGOTIATIONS The FTC issued its new guide while negotiations between the NTIA and various industry participants over mobile privacy issues are continuing. In early July, in Washington, D.C., the NTIA held its first multi-stakeholder meeting on mobile privacy to explore the transparency of mobile apps’ privacy practices.

>> continues on next page Attorney Advertising 1061

SEPTEMBER 2012

ADVERTISING, MARKETING & PROMOTIONS >> ALERT Meetings held in August on procedural issues, and a poll of stakeholders intended to identify key subjects and to move the discussions forward, continued the process.

STATE, INDUSTRY AND LEGISLATIVE ACTIONS Mobile app developers’ privacy obligations are complicated by the decision of various state regulators to join the mix. For example, earlier this year, Amazon.com Inc., Apple Inc., Google Inc., Hewlett-Packard Company, Microsoft Corporation, and Research in Motion Limited announced an agreement with California Attorney

General Kamala D. Harris setting forth improved privacy protections for app users. (For more information, please read our previous alert here.) The Mobile Market