Snapchat’s recent settlement with the Federal Trade Commission (FTC) generally provides a comprehensive but not groundbreaking roadmap to the FTC’s privacy and data security expectations in the mobile environment under Section 5 of the FTC Act, with two very notable exceptions:
- It now appears that companies are required to follow researchers’ blogs and other writings to see if there are any privacy or data security vulnerabilities, and to act on any such information promptly; and
- It also appears that the FTC expects companies to be aware of all third parties who have technology that can interact with an app, and to make sure that when consumers engage in any such interaction, all of the company’s privacy and data security representations remain true. If the FTC continues down this path, it will create unsustainable new burdens on app developers, many of which have very few resources to begin with. Furthermore, if this is the new standard, there is no reason it should be limited to the app environment—analytically, this would lead to a rule of general application.
THE BASIC ALLEGED MISREPRESENTATION
A NEW DUTY TO DISCOVER POSSIBLE VULNERABILITIES
Given the app’s popularity, along with its unqualified claims (“snaps disappear . . .”), maybe it shouldn’t be surprising that creative users and other opportunistic individuals found ways to preserve these supposedly fleeting messages. As the FTC complaint put it, “several methods exist by which a recipient can use tools outside of the application to view and save snaps indefinitely.” The FTC noted in particular “widely publicized” methods for saving video files sent through Snapchat and for using smartphones’ “screenshot” functionality to capture a snap. With regard to the screenshot work-around, Snapchat also represented that the app would “let you [the sender] know if [recipients] take a screenshot.” But this representation was allegedly misleading because of the well-known means for circumventing the app’s alert mechanism.
But the FTC also seems to have collapsed a subtly different type of problem with the app into the discussion of these allegedly “widely publicized,” albeit ad hoc, means to preserve supposedly ephemeral snaps. As the complaint (and press release) put it, a “security researcher” warned the company in 2012 that the way its application programming interface (API) functioned made it possible for third-party apps to download and save photo and video messages sent through the Snapchat service, since the deletion function was wholly dependent on the Snapchat application itself.
The fact that this “warning” to Snapchat—note that the complaint does not say if or how Snapchat actually received or learned about this warning, if at all, or that the warning was “widely publicized”—evidently should have been sufficient to put the company on notice that its app had a vulnerability suggests that the FTC may be trying to create a very broad “duty to discover” potential privacy or security vulnerabilities. It’s one thing for this type of flaw to lead to a misrepresentation based on the ephemeral nature of the snaps (since Section 5 is a strict liability statute, and Snapchat’s representations allegedly were facially misleading), but it’s quite unprecedented for the FTC to suggest a duty to be aware of (and therefore respond to) the warnings of “security researcher[s],” especially if those warnings are not “widely publicized.”
There is, of course, no guidance in the Snapchat settlement about which researchers companies are supposed to pay attention to, or which warnings they must quickly heed. Evidently, the FTC thinks that Section 5 requires app developers to proactively monitor the online community for possible security vulnerabilities. There is no analytical reason to limit this new expectation to app developers. As a result, the FTC risks creating considerable compliance costs for all kinds of companies, and not just mobile app companies.
ADDITIONAL SECTION 5 VIOLATIONS – A CHECKLIST FOR MOBILE APP COMPLIANCE
Reasonable security. The last count of the complaint alleges that the company failed to secure the Find Friends feature, both by: failing to verify that the phone number that a user entered did, in fact, belong to the mobile device being used by that individual; and by failing to implement restrictions on the number of Find Friend requests that any one account could make. Hackers were allegedly able to exploit flaws in the app’s security to access 4.6 million Snapchat usernames and phone numbers. In light of these vulnerabilities, the FTC alleged that the company’s representations about how it secures users’ data (e.g., “Snapchat takes reasonable steps to help protect your personal information”) were false and misleading as well.
Privacy by design. As the FTC has made clear, developers must implement privacy-by-design by building privacy and security into the app’s structure from the outset. A privacy-by-design program should address privacy risks, protect the privacy and confidentiality of personal information, and provide policies and procedures sufficient to cover the nature and scope of the app and the sensitivity of the information collected.
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The FTC’s allegations in the Snapchat complaint epitomize the FTC’s ongoing and broadening efforts to ensure that companies market their apps truthfully and protect user information. For an app to be in compliance with Section 5, it is clear that: (1) consumer controls must work for every consumer, every time, under all conditions and use cases, even ones that the developer is unaware of; (2) collection of information from users’ address books requires clear disclosure and an opt-out preference; and (3) representations about “reasonable” security create specific legal obligations to protect user data, just as representations about privacy create legal obligations to use information in a manner consistent with those representations.
But given the way that the Snapchat app interacted with third-party apps, and the FTC’s allegations relating to those interactions, the Snapchat settlement also suggests that: (1) app developers need to pay attention to privacy and data-security bloggers, and promptly remedy bugs found by these third parties; and (2) representations about which data is or is not collected by an app must extend to third-party tools that can use information generated by the users of that app.
Though in many ways the FTC’s complaint and consent order are similar to those the FTC has issued recently, the settlement is significant because of its breadth.
The Snapchat app itself illustrates current expectations of consumer controls, as well as the notion of privacy as a marketable concept in its own right. The app’s popularity was driven by the idea of privacy itself as a desirable commodity. But, according to the FTC, the app couldn’t deliver on its unqualified promises, and that made it a fairly easy target for the FTC.
As more app developers offer consumers privacy options, they need to be certain that they can live up to the promises they make, for every user, every time, under all conditions and use cases; follow researchers’ “warnings”; and understand all use cases continuously, because the FTC’s interest in mobile applications is not ephemeral.