CA Attorney General’s Report Highlights Best Practices For Mobile App Developers

by Pepper Hamilton LLP

On January 10, 2013, California Attorney General Kamala D. Harris released a report that provided recommendations and guidelines for strong privacy practices for developers of smartphone and mobile device applications, systems, platforms, and networks. The report, “Privacy on the Go: Recommendations for the Mobile Ecosystem,” was based on input from multiple large companies in the mobile application industry.

The report is one of many recent steps the California attorney general has taken to address mobile privacy. Beginning in late 2011, Harris began forming a state “e-crimes unit,” which focused on technology crimes and provided investigative support in these areas. In July 2012, the attorney general’s office created the “Privacy Enforcement and Protection Unit,” which extended consumer privacy protections through civil prosecution of California and federal privacy laws. In November 2012, Harris sent letters to 100 companies with mobile applications not in compliance with California’s privacy laws, and sued Delta Airlines in early December 2012, claiming that its mobile “Fly Delta” application for smartphones and mobile devices collected personal information from users without a state-mandated privacy policy.

As the attorney general’s report points out, one of the key challenges to consumer privacy mobile applications present stems from the fact that our mobile devices are “always-on,” “always-on-us,” and may store types of potentially sensitive personal information not typically found on our personal computers, such as call logs and location data.1 This fact, coupled with a relatively young—and rapidly expanding—mobile application industry, has the potential to lead to unanticipated privacy and security risks without adequate consideration of user privacy. Many of the report’s suggestions are in line with the Federal Trade Commission’s guidance recommending privacy by design.2

The foundation of the report’s approach is one of “surprise minimization,” which urges developers to supplement their privacy policies with “enhanced measures to alert users and give them control over data practices that are not related to an app’s basic functionality or that give sensitive information.” The report recommends that mobile applications use encryption to send and store personally identifiable information.

The report provides a number of steps that application developers can take, including:

For application developers:

  • avoid or limit collecting personally identifiable data not needed for your app’s basic functionality
  • develop a privacy policy that is clear, accurate, and conspicuously accessible to users and potential users
  • use enhanced measures, such as icons or pop-up windows, to draw users’ attention to data practices that may be unexpected and to enable them to make meaningful choices
  • appoint a privacy officer to review privacy policies when applications are updated.

For mobile ad networks:

  • avoid using out-of-app ads that are delivered by modifying browser settings or placing icons on the mobile desktop
  • have a privacy policy and provide it to the app developers who will enable the delivery of targeted ads through your network.

For operating system developers:

  • develop global privacy settings that allow users to control the data and device features accessible to apps.

For mobile carriers:

  • leverage your ongoing relationship with mobile customers to educate them on mobile privacy and particularly on children’s privacy.

The attorney general’s report points out that users are growing more concerned about their online privacy, especially when using mobile applications, and therefore makes recommendations that go beyond the requirements already set forth in the California Online Privacy Protection Act. The report urges developers to build greater privacy protections into their applications than are currently required by law, with an eye toward potential regulation in this area in the future.

The report has not been universally well received, however. In response to the attorney general’s report, representatives of the advertising industry sent a letter3 to Harris, expressing concerns that the report’s guidelines excluded perspective of “end-users, whose businesses and industries would be adversely effected [sic] by the recommendations you plan to issue as guidance.” The letter goes on to warn that the report’s recommendations will “chill innovation in the marketplace, cost jobs” and are “unworkable and could create market confusion.”

Given the California attorney general’s focus on consumer privacy protections, especially in the mobile marketplace, companies who collect personally identifiable information from users in California would do well to consider this report’s recommendations and best practices when building and deploying their mobile applications. California is one of the world’s largest economies and home to Silicon Valley. It is quite possible that other states—as well as the federal government—will follow California’s lead.


1 Most cell phones today have access to the Internet, and mobile application developers are taking advantage of that by releasing more than 1,600 new applications every day. See California Office of the Attorney General, Attorney General Kamala D. Harris Issues Guidance on How Mobile Apps Can Better Protect Consumer Privacy, available at

2 See

3 Available at


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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