Mobile Apps Face Heightened Privacy Enforcement: Policies and Practices Scrutinized

by Wilson Sonsini Goodrich & Rosati

Mobile app developers faced new scrutiny at state and federal levels this December, with app makers removing apps and taking action to respond. On December 6, 2012, California Attorney General Kamala Harris filed suit against Delta Air Lines after its failure to include a privacy policy within its mobile app.1 A few days later, the Federal Trade Commission (FTC) issued a report titled "Mobile Apps for Kids: Disclosures Still Not Making the Grade," which concluded that industry has made little or no progress in improving privacy disclosures in children's mobile apps since the FTC issued its last report on this topic in February 2012.2 The report also signaled that the FTC has launched multiple non-public investigations to "address the gaps between company practices and disclosures" and determine whether these entities in the mobile app marketplace have violated the Children's Online Privacy Protection Act (COPPA)3 or engaged in unfair or deceptive trade practices in violation of the FTC Act.4 These developments parallel the growth of mobile devices generally and make clear the importance of addressing privacy considerations in the mobile space.

In the Delta complaint, Attorney General Harris alleged that Delta's "Fly Delta" app violated the California Online Privacy Protection Act (CalOPPA)5 and California's Unfair Competition Law6 by collecting personally identifiable information7 without an applicable privacy policy. CalOPPA requires operators of commercial websites to "conspicuously" post on their websites, and operators of online services to make reasonably accessible, a privacy policy that informs consumers about the categories of personal information collected by the operators and the categories of third parties with which the data is shared. California's Unfair Competition Law prohibits individuals and entities from committing unlawful, unfair, or fraudulent business acts and practices. Attorney General Harris has taken the position that CalOPPA applies to mobile apps, and that a privacy policy for a mobile app is not reasonably accessible to consumers under that statute if it is not available to consumers within the app itself.8 The complaint against Delta alleged that Delta did not make a privacy policy available to consumers within the "Fly Delta" app and, furthermore, that Delta's website privacy policy neither mentioned the "Fly Delta" app nor disclosed several types of personally identifiable information that it collected.9 Attorney General Harris has asserted that violations of CalOPPA may result in penalties of up to $2,500 per app download.

The FTC's survey of children's apps for its December 2012 FTC staff report examined the substance of privacy disclosures, moving beyond its prior report, which focused more on the presence of disclosures. This new qualitative emphasis likely brings greater challenges for early-stage companies with limited resources.

The FTC expressed concern that a majority of surveyed apps shared children's information (including device IDs) with third parties, or included interactive features such as advertising, the ability to make in-app purchases, or links to social media services without disclosing these practices to parents.10 Both 2012 FTC staff reports examined the number of children's apps with privacy disclosures and found that most surveyed apps failed to provide any information about the data collected through the app.11 The most recent report urged players in the app ecosystem (i.e., app stores, app developers, and third parties that interact with apps) to develop accurate privacy disclosures for children's apps, including disclosing the presence of interactive features. The report also expressed the view that companies should make privacy disclosures available prior to the download of an app.12 In addition, the FTC urged the mobile app industry to develop "best practices" to protect privacy, including the three key principles from the FTC's March 2012 final consumer privacy report:13 (1) adopting a "privacy-by-design" approach to minimize risks to personal information, (2) providing consumers with simpler and more streamlined choices about relevant data practices, and (3) providing consumers with greater transparency about how data is collected, used, and shared.

In light of regulators' increased privacy enforcement against players in the mobile app marketplace, mobile app developers can expect to face continued close scrutiny of their practices. Given this enforcement focus, understanding how an app collects, uses, and discloses information is increasingly important. Formulating disclosures that accurately reflect data practices in a manner that is simple, easy to understand, and accurate poses significant challenges generally, but especially in mobile.

Attorneys in Wilson Sonsini Goodrich & Rosati's privacy and data security practice routinely assist clients with all aspects of their information practices. If you have any questions regarding mobile app privacy, please contact Lydia Parnes at or (202) 973-8801, Tracy Shapiro at or (415) 947-2042, Matt Staples at or (206) 883-2583, Gerry Stegmaier at or (202) 973-8809, or Sharon Lee at or (650) 849-3307.

1 State of California v. Delta Air Lines, Inc., Case No. CGC-12-526741 (Cal. Sup. Ct., complaint filed Dec. 6, 2012), available at

2 The December 2012 FTC report is titled "Mobile Apps for Kids: Disclosures Still Not Making the Grade" and is available at The February 2012 FTC report is titled "Mobile Apps for Kids: Current Privacy Disclosures are Disappointing" and is available at

3 Children's Online Privacy Protection Act (COPPA), 15 U.S.C. §§ 6501-6506. COPPA applies to operators of websites and online services that are directed to children or from which the operator collects or maintains personal information from users that it has actual knowledge are under 13 years of age. COPPA requires such operators to, among other things, provide detailed notice to parents and obtain verifiable consent prior to collecting, using, or disclosing personal information from children under the age of 13. The FTC has taken the position that COPPA applies to mobile apps.

4 FTC Act, 15 U.S.C. §§ 41-58.

5 California Online Privacy Protection Act (CalOPPA), Cal. Bus. & Prof. Code §§ 22575-22579.

6 Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq.

7 According to the complaint against Delta, the personally identifiable information collected by the "Fly Delta" app included, among other data, the user's geo-location, photographs, full name, telephone number, and email address.

8 An open question is whether CalOPPA is preempted by the Airline Deregulation Act. 49 U.S.C. §§ 40101 et seq.

9 CalOPPA provides that a commercial website or online service operator is in violation of CalOPPA if the operator fails to post its privacy policy within 30 days after being notified of noncompliance. When Attorney General Harris filed suit against Delta, more than 30 days had passed since she had served a warning letter to Delta.

10 FTC staff found that 59 percent of surveyed apps transmitted some information from a user's mobile device back to the developer or to a third party. In addition, of those apps, all transmitted a device ID to the app developer or, more typically, to a third party.

11 The February 2012 report stated that 16 percent of surveyed apps provided parents with a link to a privacy disclosure before app download. The December 2012 report stated that this percentage had increased only slightly, from 16 percent to 20 percent.

12 In February 2012, California Attorney General Kamala Harris and the operators of the leading mobile application platforms entered into an agreement in which those operators—Amazon, Apple, Google, The Hewlett-Packard Company, Microsoft, and Research in Motion—agreed to, among other things, provide means in their app marketplaces for app developers to make available privacy policies for all apps prior to download. See

13 The FTC's March 2012 final privacy report is titled "Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers" and is 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.

© Wilson Sonsini Goodrich & Rosati | Attorney Advertising

Written by:

Wilson Sonsini Goodrich & Rosati

Wilson Sonsini Goodrich & Rosati on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.