Recent FTC Enforcement Actions Should Serve as Warning to Software Industry about Privacy Practices

If your software company is like most, you have probably spent little or no time contemplating what needs to be in your company’s privacy policy.  In fact,  what your company is currently calling its privacy policy was likely copied from a third party website years ago and never given much thought since.  Meanwhile, your company is likely collecting and aggregating user data and looking for new opportunities to monetize it.  Sound familiar?

Well, if this is your company’s situation, you may want to rethink how you are operating in light of recent enforcement action by the FTC on corporate data collection practices.

On February 6, 2017, the FTC announced that VIZIO, Inc. had agreed to pay $2.2 million to settle charges by the FTC and Office of the New Jersey Attorney General that it installed software on its TVs to collect data regarding consumer viewing without their knowledge or consent.  In its complaint against VIZIO, the FTC alleged that VIZIO had manufactured televisions that continuously tracked consumer viewing on the television and transmitted this information back to VIZIO, and also had remotely installed the same proprietary software on previously sold televisions.  In addition to collecting information about consumer viewing, the FTC alleged in its complaint that the software had collected information about the television, IP address, wired and wireless MAC addresses, WiFi signal strength, and nearby WiFi access points.  The FTC further alleged in its complaint that VIZIO had then entered into third party contracts to sell the data collected to third parties for the purpose of measuring the audience, analyzing advertising effectiveness, and targeting advertising to particular consumers.  While VIZIO’s contracts had provided only aggregate data to the third parties, those contracts did provide segmented demographic information by sex, age, income marital status, household size, education, home information, and household value.  According to the FTC Complaint, VIZIO did make a privacy policy available on its website, but the only onscreen notifications provided to consumers were vague and timed out after 30 seconds, never sufficiently informing consumers as to VIZIO’s data collection practices with the software installed on their televisions.   The FTC alleged that VIZIO’s actions in deceptively omitting material facts constituted deceptive acts or unfair practices prohibited by Section 5(a) of the FTC Act.

In the stipulated order, VIZIO was ordered to take all the following actions before collecting any further data from consumers:

• Prominently disclose to consumers “separate and apart” from the privacy policy specifics on the data to be collected, what would be shared with third parties, the categories of third parties who would receive the data, and the purpose for which the third parties would receive the data.
• Obtain affirmative express consent from consumers at the time of disclosure and upon any material changes.
• Provide instructions at the time of obtaining consent to how consumers may revoke consent.

The stipulated order then gave specific guidelines on what would constitute “prominent” disclosure

The stipulated order also required the destruction of the previously collected data, the mandated creation of an internal privacy program meeting certain requirements, and third party oversight going forward regarding the privacy controls in place at the company.

Clearly, the FTC intended to send a message to the software industry about the collection of consumer data in the case of this particular enforcement action.

However, the FTC’s recent enforcement activities against software companies did not end with VIZIO.  In a separate statement, the FTC announced settlements with three other companies in the industry over allegations that they had made deceptive statements in their privacy policies about their participation in an international privacy program.  The companies charged in those cases were, Sentinel Labs, Inc., a software company providing endpoint protection software to enterprise customers; SpyChatter, Inc., a company marketing a private messaging app; and Vir2us, Inc., a distributor of cybersecurity software.  The FTC alleged in each complaint that the companies violated the FTC Act by making deceptive statements about their participation in privacy programs.  Attached are the complaints against Sentinel Labs, SpyChatter, and Vir2us.   In these cases, the proposed settlements merely prohibited the companies from making further misrepresentations about their participation in third party privacy or security programs, but are not final orders and still subject to possible amendment.

What conclusions should you as a software company take away from the FTC’s recent enforcement activities against software companies?  Clearly, the FTC is cognizant of the trends in the software industry to monetize data collected from software, to adopt privacy policies without actually customizing them to the practices of their particular company, and to bury privacy notices on websites without actually obtaining clear end user consent to actual business data collection practices.  So, if your company is like most in this space, you are on notice that your practices need to change.  Your privacy policy needs to be customized to the business practices of your particular company, which means that you actually need to take the time to consider each and every piece of information that you are collecting from the public and disclose what you are doing with it.  If your customers expect you to be a part of an international privacy program before they do business with you, you need to actually take the steps requirement to receive the appropriate certification from that organization before you advise consumers and the public that you are a member.  And if your software collects information, you need to make sure that not only your customers but also the parties from whom the information is collected have given their clear consent to your collection practices.  A privacy policy buried in your website is probably not sufficient to cover you legally.

If you do not change your privacy practices, you are on notice that you may soon be hearing from the FTC.

Kristie Prinz

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