By: Linda L. Goodman
Several times this week I was asked “in the event an application owner transparently disclosed that it will collect information as to the whereabouts of the user via the devices GPS in its privacy police – is there any problem to use such information?”
This is a hot issue in the US and currently has Apple in hot water with a senate sub-committee. For an app to collect, target or use Geolocation, it must disclose its collection, use and in particularly it’s sharing of such information with third parties in not only the privacy policy, but also the end user license agreement or terms.
Aside from the current issue with Apple, in 2013 the Federal Trade Commission (“FTC”) filed and ultimately settled with the maker of a popular Android mobile flashlight application over charges that the company used deceptive advertising to collect location and device information from Android owners.
The complaint claimed that the company failed to disclose wanton harvesting and sharing of customers’ location and mobile device identity with third parties. The application, which was available for free, displayed mobile advertisements on the devices that it is installed on. However, the device also harvested a wide range of data from Android phones which was shared with advertisers including what the FTC described as “precise geolocation along with persistent device identifiers.”
The privacy policy told consumers that any information collected by the Brightest Flashlight app would be used by the company, and listed some categories of information that it might collect. The policy, however, did not mention that the information would also be sent to third parties, such as advertising networks.”
In addition, the complaint claimed that consumers also were presented with a false choice when they downloaded the app, according to the complaint, with the application harvesting user information from the device and sending it to third-party advertisers even before a consumer had a chance to read and accept the terms of its End User License Agreement.
The settlement with the FTC which came out in December 2013 prohibits the app owners from misrepresenting how consumers’ information is collected and shared and how much control consumers have over the way their information is used. The settlement also requires the defendants to provide a just-in-time disclosure that fully informs consumers when, how, and why their geolocation information is being collected, used and shared, and requires defendants to obtain consumers’ affirmative express consent before doing so.
Thus the settlement required the app disclosures to make explicit, any collection of geolocation information, how it is or may be used, the reason for collecting location information and which third parties that data is shared with.
Again this was a settlement, not necessarily the law – but it is the way the law is moving. So, any geo-collection should be clearly described in both the privacy policy and the license.
Also, how geo-locating and thus targeting is done is another issue in advertisements. The use of geo-location can create an issue with the FTC regarding unfair or deceptive marketing – for example “Special offer in [geo-target] has been brought up by State Attorney Generals as deceptive marketing because there is no special offer for a specific location.
I hope this answers your questions, if not let me know.
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