Archive for the ‘Geolocation’ Category

Designing privacy for mobile apps

avatar Posted on March 16th, 2013 by Phil Lee

My phone is my best friend.  I carry it everywhere with me, and entrust it with vast amounts of my personal information, for the most part with little idea about who has access to that information, what they use it for, or where it goes.  And what’s more, I’m not alone.  There are some 6 billion mobile phone subscribers out there, and I’m willing to bet that most – if not all of them – are every bit as unaware of their mobile data uses as me.

So it’s hardly surprising that the Article 29 Working Party has weighed in on the issue with an “opinion on apps on smart devices” (available here).  The Working Party splits its recommendations across the four key players in the mobile ecosystem (app developers, OS and device manufacturers, app stores and third parties such as ad networks and analytics providers), with app developers receiving the bulk of the attention.

Working Party recommendations

Much of the Working Party’s recommendations don’t come as a great surprise: provide mobile users with meaningful transparency, avoid data usage creep (data collected for one purpose shouldn’t be used for other purposes), minimise the data collected, and provide robust security.  But other recommendations will raise eyebrows, including that:

(*)  the Working Party doesn’t meaningfully distinguish between the roles of an app publisher and an app developer – mostly treating them as one and the same.  So, the ten man design agency engaged by Global Brand plc to build it a whizzy new mobile app is effectively treated as having the same compliance responsibilities as Global Brand, even though it will ultimately be Global Brand who publicly releases the app and exploits the data collected through it;

(*)  the Working Party considers EU data protection law to apply whenever a data collecting app is released into the European market, regardless of where the app developer itself is located globally.  So developers who are based outside of Europe but who enjoy global release of their app on Apple’s App Store or Google Play may unwittingly find themselves subjected to EU data protection requirements;

(*)  the Working Party takes the view that device identifiers like UDID, IMEI and IMSI numbers all qualify as personal data, and so should be afforded the full protection of European data protection law.  This has a particular impact on the mobile ad industry, who typically collect these numbers for ad serving and ad tracking purposes, but aim to mitigate regulatory exposure by carefully avoiding collection of “real world” identifiers;

(*)  the Working Party places a heavy emphasis on the need for user opt-in consent, and does not address situations where the very nature of the app may make it so obvious to the user what information the app will collect as to make consent unnecessary (or implied through user download); and

(*)  the Working Party does not address the issue of data exports.  Most apps are powered by cloud-based functionality and supported by global service providers meaning that, perhaps more than in any other context, the shortfalls of common data export solutions like model clauses and safe harbor become very apparent.

Designing for privacy
Mobile privacy is hard.  In her guidance on mobile apps, the California Attorney-General rightly acknowledged that: “Protecting consumer privacy is a team sport. The decisions and actions of many players, operating individually and jointly, determine privacy outcomes for users. Hardware manufacturers, operating system developers, mobile telecommunications carriers, advertising networks, and mobile app developers all play a part, and their collaboration is crucial to enabling consumers to enjoy mobile apps without having to sacrifice their privacy.“
Building mobile apps that are truly privacy compliant requires a privacy by design approach from the outset.  But, for any mobile app build, there are some top tips that developers should be aware of:
  1. Always, always have a privacy policy.  The poor privacy policy has been much maligned in recent years but, whether or not it’s the best way to tell people what you do with their information (it’s not), it still remains an expected standard.  App developers need to make sure they have a privacy policy that accurately reflects how they will use and protect individuals’ personal information and make this available both prior to download (e.g. published on the app store download page) and in-app.  Not having this is a sure fire way to fall foul of privacy authorities – as evidenced in the ongoing Delta Airlines case.
  2. Surprise minimisation.  The Working Party emphasises the need for user consents and, in certain contexts, consent will of course be appropriate (e.g. when accessing real-time GPS data).  But, to my mind, the better standard is that proposed by the California Attorney-General of “surprise minimisation”, which she explains as the use of “enhanced measures to alert users and give them control over data practices that are not related to an app’s basic functionality or that involve sensitive information.” Just-in-time privacy notices combined with meaningful user controls are the way forward.
  3. Release “free” and “premium” versions.  The Working Party says that individuals must have real choice over whether or not apps collect personal information about them.  However, developers will commonly complain that real choice simply isn’t an option – if they’re going to provide an app for free, then they need to collect and monitise data through it (e.g. through in-app targeted advertising).  An obvious solution is to release two versions of the app – one for “free” that is funded by exploiting user data and one that is paid for, but which only collects user data necessary to operate the app.  That way, users that don’t want to have their data monitised can choose to download the paid for “premium” version instead – in other words, they have choice;
  4. Provide privacy menu settings.   It’s suprising how relatively few apps offer this, but privacy settings should be built into app menus as a matter of course – for example, offering users the ability to delete app usage histories, turn off social networking integration, restrict location data use etc.  Empowered users are happy users, and happy users means happy regulators; and
  5. Know Your Service Providers.  Apps serve as a gateway to user data for a wide variety of mobile ecosystem operators – and any one of those operators might, potentially, misuse the data it accesses.  Developers need to be particularly careful when integrating third party APIs into their apps, making sure that they properly understand their service providers’ data practices.  Failure to do proper due diligence will leave the developer exposed.

Any developer will tell you that you don’t build great products by designing to achieve compliance; instead, you build great products by designing a great user experience.  Fortunately, in privacy, both goals are aligned.  A great privacy experience is necessarily part and parcel of a great user experience, and developers need to address users’ privacy needs at the earliest stages of development, through to release and beyond.

Posted in Article 29 Working Party, Geolocation, Mobile telecoms, Privacy by design, Smartphones

2013 to be the year of mobile regulation?

avatar Posted on January 4th, 2013 by Phil Lee

After a jolly festive period (considerably warmer, I’m led to understand, for me in Palo Alto than for my colleagues in the UK), the New Year is upon us and privacy professionals everywhere will no doubt be turning their minds to what 2013 has in store for them.  Certainly, there’s plenty of developments to keep abreast of, ranging from the ongoing EU regulatory reform process through to the recent formal recognition of Binding Corporate Rules for processors.  My partner, Eduardo Ustaran, has posted an excellent blog outlining his predictions here.

But one safe bet for greater regulatory attention this year is mobile apps and platforms.  Indeed, with all the excitement surrounding cookie consent and EU regulatory reform, mobile has remained largely overlooked by EU data protection authorities to date.  Sure, we’ve had the Article 29 Working Party opine on geolocation services and on facial recognition in mobile services.  The Norwegian Data Protection Inspectorate even published a report on mobile apps in 2011 (“What does your app know about you?“).  But really, that’s been about it.  Pretty uninspiring, not to mention surprising, when consumers are fast abandoning their creaky old desktop machines and accessing online services through shiny new smartphones and tablets: Forbes even reports that mobile access now accounts for 43% of total minutes spent on Facebook by its users.

Migration from traditional computing platforms to mobile computing is not, in and of itself, enough to guarantee regulator interest.  But there are plenty of other reasons to believe that mobile apps and platforms will come under increased scrutiny this year:

1.  First, meaningful regulatory guidance is long overdue.  Mobiles are inherently more privacy invasive than any other computing platform.  We entrust more data to our mobile devices (in my case, my photos, address books, social networking, banking and shopping account details, geolocation patterns, and private correspondence) than any other platform and generally with far less security – that 4 digit PIN really doesn’t pass muster.  We download apps from third parties we’ve often scarcely ever heard of, with no idea as to what information they’re going to collect or how they’re going to use it, and grant them all manner of permissions without even thinking – why, exactly, does that flashlight app need to know details of my real-time location?  Yet despite the huge potential for privacy invasion, there persists a broad lack of understanding as to who is accountable for compliance failures (the app store, the platform provider, the network provider or the app developer) and what measures they should be implementing to avoid privacy breaches in the first place.  This uncertainty and confusion makes regulatory involvement inevitable.

2.  Second, regulators are already beginning to get active in the mobile space – if this were not the case, the point above would otherwise be pure speculation.  It’s not, though.  On my side of the Pond, we’ve recently seen the California Attorney General file suit against Delta Air Lines for its failure to include a privacy policy within its mobile app (this action itself following letters sent by the AG to multiple app providers warning them to get their acts together).  Then, a few days later, the FTC launched a report on children’s data collection through mobile apps, in which it indicated that it was launching multiple investigations into potential violations of the Children’s Online Privacy Protection Act (COPPA) and the FTC Act’s unfair and deceptive practices regime.  The writing is on the wall, and it’s likely EU regulators will begin following the FTC’s lead.

3.  Third, the Article 29 Working Party intends to do just that.  In a press release in October, the Working Party announced that “Considering the rapid increase in the use of smartphones, the amount of downloaded apps worldwide and the existence of many small-sized app-developers, the Working Party… [will] publish guidance on mobile apps… early next year.” So guidance is coming and, bearing in mind that the Article 29 Working Party is made up of representatives from national EU data protection authorities, it’s safe to say that mobile privacy is riding high on the EU regulatory agenda.

In 2010, the Wall Street Journal reported: “An examination of 101 popular smartphone “apps”—games and other software applications for iPhone and Android phones—showed that 56 transmitted the phone’s unique device ID to other companies without users’ awareness or consent. Forty-seven apps transmitted the phone’s location in some way. Five sent age, gender and other personal details to outsiders… Many apps don’t offer even a basic form of consumer protection: written privacy policies. Forty-five of the 101 apps didn’t provide privacy policies on their websites or inside the apps at the time of testing.“  Since then, there hasn’t been a great deal of improvement.  My money’s on 2013 being the year that this will change.

Posted in Article 29 Working Party, Geolocation, Mobile telecoms, Privacy by design, Smartphones

Geolocation in the spotlight

avatar Posted on May 23rd, 2011 by Eduardo Ustaran

No avid reader of Article 29 Working Party opinions would be surprised to see statements such as “location data from smart mobile devices are personal data” or “the combination of the unique MAC address and the calculated location of a WiFi access point should be treated as personal data”. However, when those statements appear alongside references to the night table next to someone’s bed, or the fact that specific locations reveal data about someone’s sex life, one can’t stop wondering whether an intended clarification of the applicable legal framework to geolocation services available on smart mobile devices is getting a bit sensationalistic.

Let’s get the basic facts right first: every electronic exchange of information is recorded somewhere - emails sent, web pages visited, telephone calls made, credit card transactions, etc. It is in the nature of the digital age. Smartphones and the like represent the latest form of communications technology and, as such, mobile communications leave behind some of the most sophisticated records that digital technology can generate. So a full assessment of the rules affecting the use of smartphones should go beyond a textbook interpretation of European data protection law and look at whether the collection and use of this information has an impact on people’s privacy and data security.

Some of the information generated by our day to day use of mobile communication devices will no doubt be very private. For example, the concepts of “traffic data” and “location data” are carefully defined by EU law and their use is strictly regulated because it is perceived as sufficiently sensitive. Although there are some subtle differences, in both cases the lawful use of such data normally involves obtaining the consent of the individual. However, in the case of location data, consent is not required if the data is anonymous.

This is a crucial point in the context of smartphones-generated data which the Working Party Opinion does not fully appreciate in its recent opinion on geolocation services. This is unfortunate because instead of acknowledging the different types of information that a smart mobile device may produce, all data is dumped into the same bucket. The assumption seems to be that all data collected through a smartphone device should be regarded as personal data despite the fact that some of the data does not identify the device’s user, or that the uses made of such data will never involve singling out an individual.

According to the Working Party, because location data from smart mobile devices reveals intimate details about the private life of their owner, the main applicable legitimate ground is prior informed consent. Again, this is a massive generalisation of the multiples modalities of geolocation services, many of which will rely on anonymous data or, at least, data which is not meant to identify or affect a particular user. Therefore, requiring consent from individuals may go further than what the EU legal framework intended.

For many human beings, life without a smart mobile device would be unimaginable. That is a slightly scary thought and regulators have a duty to scrutinise the data protection implications of new technologies that have the power to radically affect our lives. Clarifying how data protection law interacts with continuously evolving geolocation services is a laudable aim from which everyone can benefit. But unfortunately, a black and white approach to this issue conveys an unhealthy sense of panic and, even worse, distracts us from the fundamental challenge: spotting the real threats to our privacy and security that may be caused by rapid and imperfect technological development.

This article was first published in Data Protection Law & Policy in May 2011

Posted in Article 29 Working Party, Geolocation, Mobile telecoms, Smartphones

Let’s not panic about smartphones

avatar Posted on May 18th, 2011 by Eduardo Ustaran

Today’s Metro’s headline “Android phones all leak secrets” (placed next to a photo of a gloomy looking Arnie for added dramatic effect) was a fitting prelude to the publication of the latest Article 29 Working Party Opinion on geolocation services on smart mobile devices. The message of both pieces seemed to be very similar: enjoy your smartphone at your peril! Is it really that bad?

Let’s get the basic facts right first: every electronic exchange of information is recorded somewhere – emails sent, web pages visited, telephone calls made, credit card transactions, etc. It is in the nature of the digital age. Smartphones and the like represent the latest form of communications technology and, as such, mobile communications leave behind some of the most sophisticated records that digital technology can generate. The issue is whether the collection and use of this information has an impact on people’s privacy and data security.

The concepts of “traffic data” and “location data” are defined by EU law and their use is strictly regulated because it is perceived as sufficiently sensitive. Although there are some subtle differences, in both cases the lawful use of such data involves obtaining the consent of the individual. However, in the case of location data, consent is not required if the data is anonymous.

This is a crucial point in the context of smartphones-generated data that the Working Party Opinion does not fully address. According to the Working Party, because location data from smart mobile devices reveals intimate details about the private life of their owner, the main applicable legitimate ground is prior informed consent. This is a massive generalisation of the multiples modalities of geolocation services, many of which will rely on anonymous data or, at least, data which is not meant to identify or affect a particular user. Therefore, requiring consent may go further than what the EU legal framework intended.

Unfortunately, a black and white approach to this issue conveys an unhealthy sense of panic and, even worse, distracts us from the real challenge: spotting the real threats to our privacy and security that may be caused by rapid and imperfect technological development.

Posted in Article 29 Working Party, Geolocation, Mobile telecoms, Smartphones