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New York is now one of the 43 states where “revenge porn,” the posting of explicit photographs or videos to the Internet without the subject’s consent, is punishable by law. See how far the states have come – find out how many had criminalized revenge porn as of 2014, when Socially Aware first covered the issue.

YouTube announced that it will not allow channels that promote anti-vaccination videos to run advertisements because such videos violate the platform’s policy, which, among other things, disallows the monetization of “dangerous content.” Many of the companies whose ads appeared alongside anti-vaccination content say they were not aware it was happening. Find out how that could be possible.

Senator John Kennedy (R-LA) has introduced a bill that would give Internet users considerably more control over their personal data by mandating that social media companies inform registrants—in simple, easy-to-understand terms—that they are entering into an agreement licensing their personal data to the company. Coined the Own Your Own Data Act, the legislation would also require social media platforms to make it easy for their registrants to cancel the licensing agreement and obtain the collected data and any analysis of it.

Another privacy bill, this one proposed by Senators Ed Markey (D-MA) and Josh Hawley (R-MO), would amend the Children’s Online Privacy Protection Act (COPPA) to completely prohibit the running of targeted advertisements on websites targeted to children. Find out how else the bill would amend COPPA, and how long companies would have to comply with the amendment if it became law.

The debate over whether politicians have a right to block people on social media rages on.

The United States isn’t the only country whose president favors social media as a vehicle for sharing his views.

A #TwitterLaw symposium is being held at the University of Idaho College of Law next month. Road trip, anyone?

Even the British Royal Family has to contend with social media trolls.

The cost for violating the Children’s Online Privacy Protection Act (COPPA) has been steadily rising, and companies subject to the law should take heed. Last week, the Federal Trade Commission (FTC) announced a record-setting $5.7 million settlement with the mobile app company Musical.ly for a myriad of COPPA violations, exceeding even the December 2018 $4.95 million COPPA settlement by the New York Attorney General. Notably, two Commissioners issued a statement accompanying the settlement, arguing that the FTC should prioritize holding executives personally responsible for their roles in deliberate violations of the law in the future.

COPPA is intended to ensure parents are informed about, and can control, the online collection of personal information (PI) from their children under age thirteen. Musical.ly (now operating as “TikTok”) is a popular social media application that allows users to create and share lip-sync videos to popular songs. The FTC cited the Shanghai-based company for numerous violations of COPPA, including failure to obtain parental consent and failure to properly delete children’s PI upon a parent’s request.

Continue Reading Thank You, Next Enforcement: Music Video App Violates COPPA, Will Pay $5.7 Million

Most companies are familiar with the Children’s Online Privacy Protection Act (COPPA) and its requirement to obtain parental consent before collecting personal information online from children under 13.  Yet COPPA also includes an information deletion requirement of which companies may be unaware.  On May 31, 2018, the Federal Trade Commission (FTC) published a blog post addressing this requirement, clarifying (i) when children’s personal information must be deleted and (ii) how the requirement applies, as well as (iii) recommending that covered companies review their information retention policies to ensure they are in compliance.

(i) COPPA’s information deletion requirement.  The FTC clarifies that, under Section 312.10 of COPPA, companies may retain children’s personal information “for only as long as is reasonably necessary to fulfill the purpose for which the information was collected.”  After that, a company must use reasonable measures to ensure such personal information is securely destroyed.

(ii) Application of the deletion requirement to children’s outdated subscription information.  In its post, the FTC applies the deletion requirement to the example of a subscription-based app directed to children under 13.  If the subscription period ends, and a parent decides not to renew the service, can the company keep the child’s personal information?  The answer, the FTC confirms, is “no”:  the information is no longer “reasonably necessary” to provide the app’s services, so it must be deleted.  This is true regardless of whether a parent affirmatively requests deletion.

(ii) Recommendation to review information retention policies in light of the deletion requirement.  The FTC recommends that companies review their information retention policies with COPPA’s deletion requirement in mind.  It lists questions to help guide companies as they navigate this requirement:

  • What types of personal information are you collecting from children?
  • What is your stated purpose for collecting the information?
  • How long do you need to hold onto the information to fulfill the purpose for which it was initially collected? For example, do you still need information you collected a year ago?
  • Does the purpose for using the information end with an account deletion, subscription cancellation, or account inactivity?
  • When it’s time to delete information, are you doing it securely?

Key takeaway.  If a company possesses personal information collected online from a child under 13, and the information no longer serves the purpose for which it was collected, the company must delete it.  Companies should review their information retention policies to ensure compliance with this COPPA requirement.

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For more on the Children’s Online Privacy Protection Act, please read the following Socially Aware posts: FTC Issues Substantially Revised COPPA Rule: and Review of Changes and Compliance Tips; and Mobile App Legal Terms & Conditions: Six Key Considerations.

In the last few years, as advertising has followed consumers from legacy media such as television to online video and social media platforms, the Federal Trade Commission has been attempting to ensure that participants in this new advertising ecosystem understand the importance of complying with the FTC’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” or the endorsement guides. The endorsement guides require advertisers and endorsers (also referred to as influencers) to, among other things, clearly and conspicuously disclose when the advertiser has provided an endorser with any type of compensation in exchange for an endorsement.

A failure to make appropriate disclosures may be a violation of Section 5 of the Federal Trade Commission Act, which prohibits unfair or deceptive acts or practices. In recent enforcement actions, press releases, guidance, closing letters and letters sent directly to endorsers (including prominent public figures), the FTC has made clear its belief that: (1) appropriate disclosures by influencers are essential to protecting consumers; and (2) in too many instances, such disclosures are absent from celebrity or other influencer endorsements. Continue Reading The FTC’s Quest for Better Influencer Disclosures

Companies that offer services, whether online or offline, to consumers on a subscription or other automatic renewal basis should be aware that such offers are heavily regulated at both the federal and state levels. A recent amendment to Section 17602 of California’s Business and Professions Code provides a good opportunity for businesses that make subscription offers to review their practices. As of July 1, 2018, the obligations under California law will expand in two ways that may require businesses to update those practices.

The first change relates to the information that businesses must provide to consumers regarding the terms of a subscription offer. The current law already requires a business to provide certain information about the renewal process—such as the amount of the recurring charges, the length of the renewal period, and the cancellation policy—both before the consumer accepts the agreement, and afterwards in an acknowledgement. The amendment provides that, as of July 1, 2018, if the offer includes any free trial or gift component, the information provided to consumers must also include a “clear and conspicuous explanation of the price that will be charged after the trial ends or the manner in which the subscription or purchasing agreement pricing will change upon conclusion of the trial.” Continue Reading Amended California Law Expands Requirements for Consumer Subscriptions

With much fanfare, the Federal Trade Commission (FTC) continues to take actions relating to so-called “social media influencers” who allegedly fail to disclose material connections to the products or brands they endorse. Recurring enforcement actions and guidance—and the FTC’s ongoing promotion of its own efforts, such as through Twitter chats—make it clear that the FTC believes that its message has still not been heard by all of the players in this advertising ecosystem, including influencers themselves.

In short, any endorsements in any medium where the endorser has a material connection of any kind to the endorsed advertiser must be disclosed.

The most recent developments include an enforcement action against a company—and two of its officers—in connection with endorsements of the company made by the officers in YouTube videos and in social media.  Before turning to this case, however, we provide a brief overview of how the FTC has gotten here. Continue Reading Brands Beware: FTC Continues Campaign on Social Media Influencer Disclosures

Recent challenges to the Federal Trade Commission’s (FTC) authority to police data security practices have criticized the agency’s failure to provide adequate guidance to companies.

In other words, the criticism goes, businesses do not know what they need to do to avoid a charge that their data security programs fall short of the law’s requirements.

A series of blog posts that the FTC began on July 21, 2017, titled “Stick with Security,” follows promises from acting Chair Maureen Ohlhausen to provide more transparency about practices that contribute to reasonable data security. Some of the posts provide insight into specific data security practices that businesses should take, while others merely suggest what, in general, the FTC sees as essential to a comprehensive data security program. Continue Reading More Insight From the FTC on Data Security—or More of the Same?

BigBrotherEye-GettyImages-149355675-600pxIf your company collects information regarding consumers though Internet-connected devices, you will want to take note of the Federal Trade Commission’s (FTC) recent privacy-related settlement (brought in conjunction with the New Jersey Attorney General) with smart TV manufacturer Vizio, Inc. The settlement is significant for four reasons:

  • The FTC reinforces the position it has taken in other actions that the collection and use of information in a way that would surprise the consumer requires just-in-time notice and choice in order to avoid a charge of deception and/or unfairness under Section 5 of the FTC Act.
  • The FTC takes the position that television viewing activity constitutes sensitive data. This marks a departure from its approach of limiting sensitive data to information that, for example, can facilitate identity theft, precisely locate an individual, is collected online from young children or relates to matters generally considered delicate (such as health information).
  • The settlement includes a payment of $1.5 million to the FTC (as well as payment of civil penalties to New Jersey), but the legal basis for the FTC payment is not stated. This could suggest that the FTC will more aggressively seek to obtain injunctive monetary relief in Section 5 cases.
  • Acting Chairwoman Maureen Ohlhausen explicitly noted in a concurring statement her skepticism regarding both the allegation that TV viewing data is “sensitive” and that the FTC’s complaint adequately established that the practices at issue constitute “substantial injury” under the unfairness prong of Section 5.

Leaving aside what the chairwoman’s concurrence may portend for future enforcement efforts, the FTC again seems to be using allegedly bad facts about privacy practices to push the envelope of its authority. Accordingly, with the Internet of Things boom fueling a dramatic increase in the number of Internet-connected devices, companies that either collect information via such devices or make use of such collected information should consider the implications of this enforcement action.

Continue Reading Watch Out: The Federal Trade Commission Continues to Watch the (Alleged) Watchers

Devices_482856241Well over a year after holding a workshop addressing privacy issues associated with cross-device tracking, Federal Trade Commission (FTC) staff have issued a report. The report sets the stage by describing how cross-device tracking works, noting its “benefits and challenges,” and reviewing (and largely commending) current industry self-regulatory efforts.

The report also makes recommendations, which—while building upon the staff’s traditional themes of transparency and choice—do not introduce any materially new suggestions for compliance.

The staff’s recommendations do not have the force of law, but they do indicate the steps that the staff believes a company should take in order to avoid a charge of unfairness or deception under Section 5 of the FTC Act.

A Quick Review of Cross-Device Tracking

As more consumers utilize multiple devices in their daily lives, more and more companies are using new technologies to attempt to ascertain that multiple devices are connected to the same person. This is generally done through the use of either deterministic information (e.g., by recognizing a user through the log-in credentials he or she uses across different devices) or probabilistic information (i.e., by inferring that multiple devices are used by the same person based on information about the devices, such as IP address, location, and activities on the devices).

Continue Reading FTC Report Reinforces the Rules for Cross-Device Tracking

Recent enforcement decisions within the digital advertising industry indicate a shift in—and a clarification of—the required disclosures for companies engaged in interest-based advertising (IBA).

In particular, these decisions, taken together, indicate that an app developer’s link to its privacy policy at the point of app download may be deemed insufficient, unless the link points directly to the IBA disclosure section of the policy, or there is a clear link at the top of the policy that directs the user to that section.

Further, these decisions suggest that companies that comply with the digital advertising industry’s IBA self-regulatory principles should expressly affirm such compliance in their privacy policies.

Background

Some quick background: IBA is the collection of information about users’ online activities across different websites or mobile applications, over time, for the purpose of delivering online advertising to those users based on those activities. Although IBA is an important part of the online eco-system, if not done right, it can raise privacy concerns among consumers, who may feel that they are being spied upon by advertisers.

The Digital Advertising Alliance (DAA) has worked to ensure that IBA is done right. The DAA is a consortium of media and marketing associations that, in an effort to ward off legislation, has designed and implemented a self-regulatory compliance regime that seeks to address the Federal Trade Commission’s (FTC) IBA notice and choice expectations. The principles underlying this compliance regime are set out in the DAA’s Self-Regulatory Principles (“DAA Principles”). The DAA enforces these principles through the IBA accountability program, run by the Council of Better Business Bureaus and the Direct Marketing Association.

The DAA self-regulatory program is, at its heart, a notice-and-choice regime. In short, to facilitate such notice and choice, the DAA provides an advertising option icon to be placed in or near an online interest-based ad. By clicking on the icon, a consumer is sent to a landing page that describes the data collection practices associated with the ad and provides an opt-out mechanism.

Importantly, however, the DAA Principles have also been interpreted by the IBA accountability program to require “enhanced” notice on any website where information is collected for IBA purposes. In response to this interpretation, website publishers typically provide such notice in the form of an “Our Ads” or similarly named link in the site footer, separate from the privacy policy link, that clicks through to the same landing page as the advertising option icon, or to similar notice and choice information.

The Recent Decisions

In its recent enforcement actions, the IBA accountability program appears to have exported this manifestation of the enhanced notice requirement to mobile applications, notwithstanding the provisions of the DAA’s guidance on the Application of Self-Regulatory Principles to the Mobile Environment, first published in 2013.

That guidance expressly provides that app publishers (i.e., “first parties”) that permit third parties to collect information for IBA purposes must “provide a clear, meaningful, and prominent link to a disclosure that either points to a choice mechanism or setting that meets Digital Advertising Alliance specifications or individually lists such Third Parties.” This notice must be provided in two separate locations:

  • Either prior to download (e.g., in the app store on the application’s page), during download, on first opening of the app, or at the time cross-app data is first collected; and
  • In the application’s settings or any privacy policy.

The IBA accountability program appears, however, to be taking the position that a link to the privacy policy from the app store (or any other location) is not enough to meet this first prong.  That is, a “clear, meaningful, and prominent link” to the IBA disclosure must be a link directly to the IBA section of the privacy policy, in the same way that the “Our Ads” or similarly named link in the site footer clicks through to the IBA section of the privacy policy.

The IBA accountability program’s Spinrilla decision, for example, states that the accountability program could not find an “enhanced link notice separate from the privacy policy link” in the applicable app stores and affirmed that if only one privacy policy link will be used in the app store (where it is typically not possible to provide two separate links), “the link to the privacy policy must either go directly to the pertinent discussion of IBA or direct the user to that place through a clear link at the top of the privacy policy.”

The other accountability program decisions, Bearbit Studios and Top Free Games, reaffirm this interpretation. In light of these decisions, app publishers may want to revisit how they provide “enhanced notice” of their IBA practices.

Finally, the Mobile Guidance states that first parties should “indicate adherence” to the DAA Principles in their privacy policies. The accountability program decisions noted the absence of this language in the companies’ privacy policies, and the companies appear to have added language to their disclosures to comply with this obligation. Whether a company would want to affirmatively make this representation of its own accord is something that may warrant additional consideration, as the company’s failure to fully comply with such a representation could give rise to a charge of deception under Section 5 of the FTC Act or a similar state law.

The Upshot

In light of these developments, a company engaged in IBA should:

  • If engaged in IBA with respect to one or more of its apps, review how it discloses its IBA practices at the point of app download; and
  • Discuss with counsel the advisability of expressly stating adherence to the DAA Principles in its privacy policy.

 

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For background information on the DAA program and its applicability to the mobile environment, please see our earlier Socially Aware blog post, Digital Advertising Alliance Focuses on Mobile Ads. For more on consumer privacy issues generally, please see the following posts: A Warning for Websites Allowing Data Collection for Online Behavioral Advertising; FTC’s Privacy Report Suggests Tightening of Privacy Regime, Provides Guidance to Business; and Tracking the Trackers: Social Media Companies Face Pressure for Tracking Users’ Browsing Habits.