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Advertising, Marketing & Promotions Alert >> FTC Amends COPPA To ANA Advertising Law & Public Policy Conference Ten Minute Solutions to Six of Your Biggest Problems March 19, 2013 Ronald R. Urbach Chairman and Co-Chair, Advertising, Marketing & Promotions Group 212.468.4824 [email protected] 1740 Broadway, New York, NY 10019 www.dglaw.com Table of Contents Tab Relevant Materials 1 • “FTC Announces New Mobile Privacy Guidelines on Same Day Social Networking App Settles Privacy Charges,” Davis & Gilbert Advertising, Marketing & Promotions Alert • “FTC Amends COPPA To Strengthen Children’s Privacy Protections,” Davis & Gilbert Advertising, Marketing & Promotions Alert • “FTC Finalizes New Green Guides,” Davis & Gilbert Advertising, Marketing & Promotions Alert • “Data: A Creative Director’s Perspective,” Madison Ave Insights’ blog post, October 22, 2012 • “Privacy and the FTC: Inside Perspective from FTC Commissioner Julie Brill,” Madison Ave Insights’ blog post, October 9, 2012 Biography 2 • Ronald R. Urbach, Chairman/Co-Chair, Advertising, Marketing & Promotions Firm Information 3 • Advertising, Marketing & Promotions • Awards and Recognitions o The National Law Journal 2012 Midsize Hot List o Chambers USA : America’s Leading Lawyers for Business for Advertising: Transactional & Regulatory Nationwide 2012 Ranking TAB 1 FEBRUARY 2013 ADVERTISING, MARKETING & PROMOTIONS >> ALERT FTC ANNOUNCES NEW MOBILE PRIVACY GUIDELINES ON SAME DAY SOCIAL NETWORKING APP SETTLES PRIVACY CHARGES The Federal Trade Commission (FTC) issued a report containing specific recommendations on improving mobile privacy disclosures for mobile platforms, app developers, advertising networks, and other third parties. If it is possible to have any doubts about the FTC’s strong and continuing THE BOTTOM LINE focus on mobile privacy issues, it is worth noting that the new report The report’s recommendations are best practices – not rules or regulations. However, was issued on the same day that the they offer a glimpse into the FTC’s likely enforcement stance under Section 5 of the Path social networking app agreed to FTC Act, so these are guidelines that the industry certainly should follow. The pay $800,000 to settle FTC charges guidelines should be considered together with prior FTC pronouncements regarding that it deceived users by collecting privacy by design and online data collection. The industry’s stakeholders should pay personal information from their mobile close attention to future announcements regarding guidance, recommendations, device address books without their initiatives, and significant enforcement proceedings in this area. knowledge and consent, and that it illegally collected personal information from children without their parents’ >> Provide so-called “just-in-time” consumers to review the types of consent in violation of the Children’s disclosures to consumers and content accessed by the apps they Online Privacy Protection Act (COPPA). obtain their affirmative express have downloaded; consent before allowing apps to >> Consider developing icons to depict access sensitive content such as REPORT’S RECOMMENDATIONS the transmission of user data; geolocation; The FTC report notes that because >> Promote app developer best mobile platforms offer app developers >> Consider providing just-in-time practices by, for example, (i) adding and others access to user data from disclosures and obtaining affirmative provisions to contracts with mobile devices (e.g., geolocation express consent for other content app developers to require them information, contact lists, calendar that consumers would find sensitive to provide just-in-time privacy information, and photos) through their in many contexts, such as contacts, disclosures and to obtain affirmative application programming interfaces photos, calendar entries, or the express consent before collecting (APIs), platforms have an important recording of audio or video content; role in conveying privacy information to or sharing sensitive information; consumers. Accordingly, the report >> Consider developing a one-stop (ii) reasonably enforcing these recommends that mobile platforms: “dashboard” approach to allow requirements; and (iii) educating >> continues on next page Attorney Advertising 1158 FEBRUARY 2013 ADVERTISING, MARKETING & PROMOTIONS >> ALERT app developers on privacy and and other third parties (such as The FTC’s recommendations – making important information about analytics companies) that provide including its continuing emphasis consumer privacy considerations services for apps so the app on DNT – complement California’s available to them as they craft their developers can better understand recently issued mobile privacy apps; the software they are using and, guidance, and likely will be considered in turn, provide accurate by the Department of Commerce’s >> Consider providing consumers with disclosures to consumers; and National Telecommunications and clear disclosures about the extent to Information Agency in connection which platforms review apps prior to >> Consider participating in self- with its efforts to develop a code making them available for download regulatory programs, trade of conduct on mobile application in the app stores and conducting associations, and industry transparency. For more information compliance checks after the apps organizations, which the report on mobile marketing and privacy have been placed in the app stores; said can provide guidance on and the latest update, please click and how to make uniform, short-form here for our previous Alert. privacy disclosures. >> Consider offering a Do Not Track (DNT) mechanism for smartphone In addition, the report recommends PATH SETTLEMENT users. that advertising networks and other In its complaint against Path, the third parties should: It is important to keep in mind that a operator of a social networking app mobile DNT mechanism already has >> Communicate with app that allows users to share personal been endorsed by a majority of the developers so that the developers journals with up to 150 friends, the Commission, which believes that it can provide truthful disclosures FTC alleged that the user interface would “allow consumers to choose to to consumers; and in Path’s iOS app was misleading prevent tracking by ad networks or and did not provide consumers with >> Work with platforms to ensure other third parties as they navigate meaningful choice regarding the effective implementation of DNT among apps on their phones.” collection of their personal information. for mobile. The FTC also alleged that Path’s Specifically with respect to app privacy policy deceived consumers by Finally, the report suggests that developers, the report recommends claiming that it automatically collected app developer trade associations, that they should: only certain user information such as academics, usability experts, and IP address, operating system, browser >> Have a privacy policy and make privacy researchers could: type, address of referring site, and site sure that it is easily accessible >> Develop short-form disclosures activity information but that version 2.0 through the app stores; for app developers; of the Path app for iOS automatically >> Provide just-in-time disclosures collected and stored personal >> Promote standardized app and obtain affirmative express information, including first and last developer privacy policies that consent before collecting and names, addresses, phone numbers, will enable consumers to compare sharing sensitive information (to and email addresses, from the user’s data practices across apps; and the extent that platforms have not mobile device address book. already provided these disclosures >> Educate app developers on and obtained such consent); privacy issues. >> Improve coordination and communication with ad networks >> continues on next page FEBRUARY 2013 ADVERTISING, MARKETING & PROMOTIONS >> ALERT The FTC also charged that Path, which establish a comprehensive privacy collects birth date information during program and to obtain independent FOR MORE INFORMATION user registration, violated the COPPA privacy assessments every other year Allison Fitzpatrick by collecting personal information from for the next 20 years. The settlement Partner approximately 3,000 children under the also prohibits Path from making any 212.468.4866 [email protected] age of 13 without first obtaining their misrepresentations about the extent to parents’ consent. which it maintains the privacy and Gary A. Kibel Partner confidentiality of consumers’ personal In addition to agreeing to pay an 212.468.4918 information. [email protected] $800,000 civil penalty to settle the COPPA charges, Path agreed to Joseph J. Lewczak Partner 212.468.4909 [email protected] or the D&G attorney with whom you have regular contact. Davis & Gilbert LLP T: 212.468.4800 1740 Broadway, New York, NY 10019 www.dglaw.com © 2013 Davis & Gilbert LLP JANUARY 2013 ADVERTISING, MARKETING & PROMOTIONS >> ALERT FTC AMENDS COPPA TO STRENGTHEN Children’s PrivACY PROTECTIONS The Federal Trade Commission (FTC) adopted final amendments to the Children’s Online Privacy Protection Act (COPPA) to strengthen children’s privacy protections and to give parents greater control over the personal information that websites and online services collect from children under thirteen. The final amendments go into effect on July 1, 2013 and were announced only THE BOTTOM LINE weeks after the FTC issued a report, which found that mobile applications The FTC continues to focus on children’s privacy issues, striving to give parents
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