By Douglas G. Bonner and Jennifer L. Oberhausen 

Following a very active year in which California Attorney General Kamala D. Harris (California AG) has already prioritized mobile application privacy by taking some high profile actions, the California AG on January 13, 2013 released a set of recommended privacy “best practices” intended to “assist app developers, and others, in considering privacy early in the development process.” 

The California AG is confronting the particular privacy challenges posed by the the growing use of smart phones and other mobile devices that act like “pocket computers.”  The expanded functionality of these devices — for voice, Internet access, mapping/navigation and other location-based services — and their small screens, generate user and device-related data that have the potential to present new issues regarding privacy and security. The basic approach is to “minimize surprises” to consumers from “unexpected privacy practices,” such as collecting personally identifiable data that is not needed for an app’s basic functionality, and to make an app’s privacy policy readily available (through enhanced notice and control measures) and easy to understand before the app is downloaded. 

These proposed best practices follow California AG consultation with a range of mobile application industry players, academics, and privacy advocates.  The California AG also intends that these new proposed mobile privacy best practices will be used in the ongoing NTIA multistakeholder process to develop an enforceable code of conduct for mobile app transparency. 

I.  2012 – A Year for Mobile Privacy Initiatives

The “Privacy On the Go” proposed best privacy practices for mobile applications   follows a series of other California privacy initiatives involving mobile applications:

  • In December 2012, the California AG filed in San Francisco Superior Court the first mobile privacy enforcement action against Delta Air Lines for allegedly violating the California Online Privacy Protection Act (CalOPPA) by not conspicuously posting a privacy policy in its mobile app “Fly Delta.”  (See Client Alert: Mobile Apps Privacy Policy – A Must (Dec. 20, 2012). 
  • In July 2012, the California AG created the “Privacy Enforcement and Protection Unit whose mission is to enforce state and federal privacy laws and to develop programs “to encourage businesses to adopt privacy best practices.”
  • In February 2012, the California AG announced a Joint Statement of Principles in which mobile device platform providers deploying most of the mobile applications stores  signed on to promote transparency to consumers by agreeing to  the conspicuous posting of a privacy policy by mobile apps when required by law (i.e. by mobile users in California), including a means to make it available on the app platform before downloading the app, a process to report non-conforming apps to the platform provider for response, and to work with the AG on best practices for mobile privacy.  As of October 2012, all app store companies who entered the agreement reported that they had implemented the principles. 

Because of  its existing CalOPPA enforcement authority, the significant size and influence of the California economy (the world’s 9th largest), and the very nature of  mobile application usage not being fixed in one geographic location, California regulation or even mobile application best practices agreed to by businesses operating in California should be considered a least common denominator or minimum standard for mobile applications used elsewhere throughout the U.S. (and perhaps internationally, too).  The California AG recommended best practices are much broader than the possible mobile app transparency voluntary (and enforceable) code of conduct currently under discussion in the federal National Telecommunications and Information Administration (NTIA)-convened multistakeholder process.  The California AG recommended best practices are addressed primarily to app developers, though they include recommendations to all actors within the mobile ecosystem.

II. Recommendations for App Developers

The California AG sets forth a recommended process for application developers to follow in both deciding what information to collect and how to communicate their privacy practices to users.  The process includes creating a checklist to consider the types of data an app could access or collect; deciding what personally identifiable data the app needs to carry out its basic functions; deciding whether to collect any non-essential data or sensitive information; deciding how to use, share, retain, and secure collected data; preparing a general privacy policy statement; and deciding on and implementing any enhanced notification measures.
The California AG suggests that app developers first create a checklist to consider what types of data the app could potentially collect, use, and disclose, and identifies the following categories of data that app developers should consider: 

  • Unique device identifiers;
  • Geolocation data, including data collected through GPS, WiFi, and user entry;
  • Mobile telephone numbers
  • E-mail addresses;
  • User names;
  • Text messages or e-mails;
  • Call logs;
  • Contacts and address book entries;
  • Financial or payment information;
  • Health or medical information;
  • Photos or videos;
  • Internet browsing history; and
  • Other apps downloaded or used.

Then, developers should consider the following questions for each type of data:

  • Is the data necessary for the basic functionality of the app?
  • Is the data necessary for other business purposes, such as billing?
  • How will the data be used?
  • Is it necessary to store the data off the mobile device, on the app developer’s servers?
  • How long does the data need to be stored on the app developer’s servers?
  • Will the app developer share the data with third parties, such as advertising networks, analytics companies, or service providers?
  • How will third parties use the data?
  • Who within the app developer’s organization will have access to user data?
  • Is the app directed to or likely to be used by children under the age of 13?
  • What parts of the mobile device does the app developer have permission to access?  Can the app developer provide users with the ability to modify permissions?

The Attorney General urges app developers to keep privacy practices transparent, limit data collection and retention, provide users access to their own personally identifiable data that the app collects and retains, and use security safeguards to protect personally identifiable data from unauthorized access, use, disclosure, modification, or destruction.

The general privacy policy should provide a comprehensive overview of the app developer’s practices and should comply with other legal requirements for such policies.  Additionally, the California AG suggests that app developers make the privacy policy conspicuous, easy to find, and easy to read.  The policy should thoroughly describe practices regarding the collection, use, sharing, disclosure, and retention of personally identifiable data including the types of data collected, the use and retention period for each category of data, the categories of third parties with whom the data will be shared, and the choices a user has regarding the collection, use, and sharing of user information.

The California AG directs app developers to supplement a general privacy policy with enhanced measures when an app collects sensitive information or personally identifiable data that is not essential to the app’s basic functionality.  Accessing text messages, call logs, the camera, the dialer, or the microphone, or collecting geolocation, financial information, medical information, or passwords would warrant providing users with “special notice”.  A special notice delivers notice to the user of data collection, typically just before the specific data is collected.  A special notice could also explain the intended uses of the data and disclose third parties to whom user data would be disclosed.  When an app developer makes use of the app contingent on collection of particular data, that choice could be made clear through a special notice.

Ultimately, an app developer is accountable for complying with applicable laws, their own general privacy policies, and any other privacy notices the developer provides.  The California AG suggests that developers ensure compliance by identifying someone within the developer’s organization to be responsible for reviewing the privacy policy whenever the app is updated or business practices change, maintaining archives or previous versions of the privacy policy, confirm rules for limiting internal access to personally identifiable data, and remaining informed of new privacy laws and regulations.  App developers should ensure that all employees are informed of privacy policies and obligations, which the California AG suggests could be achieved through training new employees upon hiring and at least annually for all employees.

III.  Recommendations for App Platform Providers

As part of their Joint Statement of Principles entered into with the California AG in February 2012, the major app platform providers (or “App Stores”) agreed to work with the California AG to improve general mobile privacy practices.  The resulting California AG-recommendedbest practices for App Platform Providers are:

  • Make app developers’ privacy policy “conspicuously accessible” to users on the app platform;
  • Educate app developers to respect consumer privacy and to disclose to consumers what personally identifiable information (“PII”) they collect, how it is used, and with whom it is shared.
  • Empower app users to report apps that do not comply with applicable laws or the apps own privacy policies or terms of service, and establish procedures to respond to those reports.
  • Educate consumers on mobile privacy on the app platform; encourage review of each app’s privacy policy before downloading it; encourage review of privacy choices and controls in apps after downloading; and inform parents of resources to protect children’s privacy, such as the FTC’s information for parents on the Children’s Privacy Protection Act.  

IV.  Recommendations for Advertising Networks

Because delivery of targeted advertising is a common business model for mobile apps, mobile apps enable the collection of user information that is often not transparent to the user.  The report recommends establishing privacy practices for in-app mobile ad technologies to provide greater user control over the use of PII by third parties for behavioral advertising.  The privacy practices for advertising networks include:

  • Prepare a privacy policy similar to that recommended for app developers governing your collection, use, disclosure and retention of PII data.
  • Provide the privacy policy to the app developers and a link to your privacy policy for app developers to make available to users before they download or activate the app.
  • Provide clear information on the impact of your advertising practices on app SDKs.
  • Avoid ads outside the context of the app, such as by modifying browser settings or placing icons on the mobile desktop.  When delivering out-of-ap ads, use enhanced measures, obtain prior consent from users, and provide clear attribution to the host application responsible.
  • Use enhanced measures and secure prior consent before accessing PII such as phone number, email address or name. 
  • Use app-specific or temporary device identifiers, not unchangeable device-specific identifiers.
  • Transmit user data securely, using encryption for permanent unique device identifiers and personal information.

V.  Recommendations for Operating System Developers and Mobile Carriers

1.  Operating System Developers:

  • Work with mobile carriers and others to timely patch security weak points;
  • Work with device manufacturers and mobile carriers to establish universal, cross-platform privacy control standards, delivery of special privacy notices, and privacy icons.
  • Develop global privacy settings and overrides for users to control their PII, and other data that can be accessed by apps.

2.  Mobile Carriers – In addition to the above work with OSDs:

  • Establish educational outreach programs to mobile customers about privacy protection, including encouraging consumers to review the app privacy policy statement before reviewing an app, and to seek out app privacy choices and  controls after downloading.  Finally, help to educate parents on resources available for mobile privacy and safety of their children.

VI.  Conclusion

It remains to be seen which segments of the mobile application ecosystem elect to affirmatively respond to any of these recommendations with concrete actions, beginning with application developers, on whom the California AG appears to focus as the first potential “line of defense” for mobile privacy protection.  But given a demonstrated willingness by the California AG to enforce CalOPPA and other privacy laws, and assuming application platform providers and others continue to encourage cooperation with mobile privacy best practices, application developers will likely give serious consideration to implementationof many of these recommendations.

Source: Client Alert