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.”
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 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.”
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 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.
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:
- 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.
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:
- 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:
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 implementation of many of these recommendations.