Posted on October 19, 2011 by Mark Brennan

New Guidelines Released for Mobile App Privacy Policies

On October 17, the Mobile Marketing Association (“MMA”) released a set of draft privacy policy guidelines for mobile applications (“apps”) designed to address key data and privacy security issues. Entitled “Mobile Application Privacy Policy Framework,” the draft guidelines provide a “starting point” privacy policy template written in consumer-friendly language with instructions for adapting the template to specific apps.

The guidelines provide a helpful tool for informing app users of the type of information that the app obtains and how that information is used, with sections devoted to both user-provided data and automatically collected information. The guidelines also address the collection and use of “precise" real-time location information, an issue that has garnered much media attention (and increasing regulatory scrutiny) due to the popularity of new location-based services. Finally, the guidelines also address other critical app areas, including:

  • Third-party access and use of consumer data;
  • Advertising (including the use of mobile advertising networks);
  • Consumer consent and opt-out rights;
  • Data retention;
  • Children’s Online Privacy Protection Act (“COPPA”) compliance;
  • Security and confidentiality safeguards; and
  • Future changes to the policy.

The guidelines are a response to data privacy and security concerns brought about by the skyrocketing consumer demand for and usage of apps, which have exploded in the last few years. For example, although the iTunes Store and Android Market only opened in 2008, today more than 1.2 million apps are currently available from multiple app stores on various operating systems. And consumers have downloaded more than 10 billion mobile apps to date.

Hogan Lovells represented the Future of Privacy Forum, a member organization of the MMA Privacy & Advisory Committee,which developed the guidelines. According to MMA, the draft guidelines are the first in a series of privacy policy materials that the organization is planning to develop. 

Comments on the draft guidelines are due November 18, 2011. After that date, the guidelines will be finalized and released publicly.
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Posted on June 17, 2010 by Mark Brennan

New FCC Proceeding Seeks Comment on Potential Exemptions to Telemarketing, Autodialer, and Prerecorded Message Restrictions

The Federal Communications Commission (FCC) issued a Public Notice seeking comment on a Petition for Expedited Clarification and Declaratory Ruling (Petition) filed by Global Tel*Link Corporation (Global Tel) regarding its outbound calling practices.  The Petition raises several key issues under the Telephone Consumer Protection Act (TCPA) and related FCC rules, including whether certain calls (e.g., non-telemarketing calls) should be exempt from some of the TCPA’s restrictions on the use of prerecorded messages and autodialers.  Given the broad applicability of the TCPA and the FCC’s rules, this new proceeding could affect any company that places calls using prerecorded messages or autodialers.

The TCPA and the FCC’s rules prohibit, among other things, the use of automatic telephone dialing systems (“autodialers”) or artificial or prerecorded messages when calling, inter alia, telephone numbers assigned to wireless services, absent an emergency or the “prior express consent” of the called party.  Of note, the restriction against placing these calls to mobile phones without prior express consent applies regardless of whether the call is a “telemarketing” call.  The TCPA and the FCC’s rules also make it unlawful to place a non-emergency telephone call to a residential line “using an artificial or prerecorded voice” without the recipient’s “prior express consent” (although there are some exceptions).   

As described in the Petition, Global Tel provides outbound calling services for prison inmates.  For certain outbound calls (e.g., some calls from inmates to mobile phone numbers), Global Tel sets up a billing arrangement with the called party before connecting the called party to the inmate.  For example, when the inmate places a call, Global Tel initiates an “automated interactive voice response notification” to:

  • inform the called party that an inmate is trying to make contact;
  • get consent for the call; and
  • establish the billing arrangement. 

Global Tel then puts the call through. 

Concerned that these inmate calls could expose the company to liability under the TCPA and the FCC’s rules, Global Tel has asked the FCC to exempt the calls from TCPA enforcement.  For example, Global Tel argues that the calls to landline phones serve no commercial purpose, are not an unsolicited advertisement, and include an opt-out mechanism so that called parties can avoid future calls.  Regarding calls to mobile telephone numbers, Global Tel argues, among other things, that it can be presumed that the inmate has dialed a cell phone number because that is the number at which the called party wishes to be reached.  Moreover, the called party may have only a wireless phone (and not a landline phone).  Separately, Global Tel argues that its calls do not involve the use of an autodialer or predictive dialer.

Although the Petition is focused on Global Tel’s situation, the FCC’s decision in this proceeding could affect many companies that rely on the use of prerecorded messages or autodialers as part of their communications strategy.  Nonetheless, the FCC has established a very short comment period for this item – comments will be due just 15 days after the item appears in the Federal Register, and replies are due 25 days after the item appears in the Federal Register.

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Posted on November 4, 2009 by Christopher Wolf

FTC Issues Guidance on Blogging-for-Pay, Testimonial Disclaimers, and Celebrity Endorsements in First Revision of Endorsement Guides in 29 Years

We have distributed a Hogan & Hartson Privacy Update on the FTC's October 5 revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising, the first modifications to these key advertising guidelines since 1980.  While the Guides are advisory in nature, they reflect situations in which the FTC may exercise its prosecutorial discretion to enforce Section 5 of the FTC Act, which prohibits unfair and deceptive trade practices.

Key among the revisions is the guideline that bloggers and other Internet users who are compensated to endorse products must disclose this connection in their endorsement, and both the blogger and advertiser are responsible that factual claims about the product made by the blogger are substantiated.  Another key provision states that advertisers, when using an endorser whose experience does not reflect generally expected results when using the product, should issue a clear disclaimer communicating the generally expected results, departing from earlier enforcement policy that allowed advertisers to simply display a disclaimer stating that the endorser's results were not typical.  The FTC also added many examples to guide advertisers in their use of endorsers.

The update can be accessed here.

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