Privacy and Notice Considerations for Mobile Tracking in Applications

The Digital Advertising Alliance recently released guidance to provide further direction to companies operating mobile applications. The guidance applies to companies that engage in behavioral targeting, with use of cross app tracking to serve advertisements, app base tracking of geo location data, collection of address book information from social networking accounts, and behavioral tracking on mobile websites. Fundamentally speaking, the guidance remains the same; give notice and choice on mobile devices. 

In particular, notice that any of these activities are occurring should be provided at the location the app is downloaded, where the app is first opened, or when such data identified above is collected by the app. While this can be accomplished by linking to specific language in a separate disclosure, it should not be buried in a website agreement such as a Terms of Use or End User License Agreement. The notice should be placed in a clear and conspicuous manner, such as in a pop-up. That being said, these privacy notices and choices should also be included in the Terms of Use and Privacy Policy. Finally, any settings for the app should educate the consumer of these mobile tracking efforts and provide choice to that consumer as to whether or not to participate. Put simply, companies need to identify what is collected, how the data is used, provide an opportunity to opt out of such collection, and clarify how the company will ensure compliance with such opt out.

Any entity that is engaged in mobile on line behavioral advertising, geo location tracking, or the passive collection of address book information should understand these guidance principles. Failure to do so could result in action by the FTC, a private lawsuit, such as a class action, or other action being taken against you. While, in its simplest form, companies must merely give notice and choice on mobile devices, what that notice must entail in the choices that are to be provided to the consumers does vary depending upon the kind of activity done as part of the mobile tracking. For example, behavioral advertising in the application environment subject to an opt out scheme, whereas geo location tracking requires an opt in. In the event that a company employs an outside vendor to provide its mobile application, it should ensure that the mobile applications functionality complies with these principles and can ensure the necessary notice and choice is provided.