United States: Beyond Privacy Policies: Practical Privacy For Web Sites And Mobile Apps

Last Updated: June 3 2013
Article by Anne Davies Newman

In this environment of growing attention to the risks of data security breaches, and in the midst of an explosion of mobile applications that make data storage an increasingly far-flung proposition, many organizations assume that the first line of defense for a company with a Web site or a mobile app is a good privacy policy.

In its March 26, 2012, report on privacy policy guidelines, "Protecting Consumer Privacy in an Era of Rapid Change," the Federal Trade Commission (FTC) made a number of recommendations that will affect the content of privacy policies going forward. In December, the FTC followed up those recommendations with significant changes to the Children's Online Privacy Protection Rule, and in January 2013, California's attorney general issued recommendations for privacy practices for developers of mobile applications to observe. The bottom line is that posting a privacy policy is not enough. At a minimum, companies with Web sites or mobile apps should be aware of the following:

  1. The most important thing about a privacy policy is that it accurately reflect actual practice. The FTC does not dictate the contents of a privacy policy, but it can – and does – bring enforcement actions where companies with Web sites or mobile apps do not adhere to the privacy policies they post.
  2. When a privacy policy is revised, information collected under the previous policy cannot be used or disclosed pursuant to the terms of a (more liberal) revised policy, without the consent of the consumer. This means that a company with a Web site or mobile app must keep track of what personally identifiable information is collected under each revision of its policy.
  3. Where the user "clicks" his/her consent to a Web site's Terms of Use or Privacy Policy, they are more likely to be found enforceable than where no affirmative action is required. Wherever possible, a company with a Web site or mobile app should locate a link to its privacy policy at those points where personal information is collected and require agreement at the time that information is submitted.
  4. The company will need to require that third parties who will see personal information of visitors (Web hosts, for example) agree in writing to keep that personal information confidential and secure.

Managing the Risk

But to effectively manage the risk associated with collecting, storing and using personal information, a company with a Web site or a mobile app – indeed, every organization that collects personal information – should do much more than simply post a privacy policy. For example, the organization should take the following actions:

  • identify what personal data the organization has in its possession, and where (including laptops and portable devices), and evaluate whether some of it could be deleted
  • include in its inquiry information collected offline as well as that collected online
  • focus on all information that can reasonably be linked to a consumer, or a computer or a device, because the traditional distinction between personally identifiable information and non-personally identifiable information has become blurred
  • limit the information it collects (online and by other means) to what is necessary for the purpose for which it is collected, use the information collected only for that purpose, limit disclosure of the information to those with a need to use it for the purpose, retain it only as long as is necessary to fulfill the purpose and delete it when it is no longer needed
  • identify foreseeable threats to the organization's information and its underlying information systems. Many of these threats are not exotic, but include the mishandling of passwords and thumb drives, along with potential loss of information during document disposal, transport of personal information from one point to another, remote access and overseas travel
  • assess its administrative, physical and technical information security controls (including record retention policies) currently in place, and improve them where necessary or desirable
  • develop and test specific procedures for responding to a security breach
  • address privacy at every stage in the development of its products and services, and in its overall operations
  • review its contractual arrangements with service providers that have access to personal information (including cloud computing arrangements), and be sure such service providers have agreed in writing to protect the confidentiality, integrity and availability of that personal information
  • designate a person to be responsible for the implementation and effectiveness of the organization's privacy efforts
  • communicate the importance of data security throughout the organization, and train those responsible for the handling of personal information
  • consider the use of privacy-enhancing technologies (PETs), such as encryption
  • review and update the organization's policies and procedures annually, and also in conjunction with any change in business processes that affects the security of personal information (such as outsourcing call center functions), and
  • recognize that other countries address data security differently than the United States. If the organization collects personal information from individuals outside the United States, via its Web site, mobile or otherwise, it will need to be sure it obtains their consent or otherwise complies with applicable law.

An organization that takes the steps outlined above will be more likely to prevent a security breach, and better prepared in the event one occurs, than one that posts a privacy policy but does no more.

This article originally was published in May 2013 in SearchSecurity

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Stites & Harbison PLLC
 
In association with
Practice Guides
by Mondaq Advice Centers
Relevancy Powered by MondaqAI
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Stites & Harbison PLLC
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions