There could be exceptions to the rule – maybe an unexpected bonus or an out-of-the-blue call from a friend – but as a general proposition, people don’t like surprises. As letters the FTC staff just sent to mobile app developers suggest, people really don’t like surprises about the information their apps gather. And the kind of data those apps had the capacity to collect may come as a surprise even to savvy industry members.
The letters went to developers of apps that use software development kits created by a company called Silverpush. Silverpush offers tools that include something called “Unique Audio Beacon” technology.
What can the audio beacon do? If there’s a TV on near a phone that has the app installed, the beacon can use the phone’s microphone to detect signals embedded in certain TV programs. Running silently in the background even if the person isn’t using the app, the technology could allow Silverpush to generate a log of a person’s TV viewing that could be used for ad targeting or analytics.
According to FTC staff, the developers who got the letters use code that looks a lot like Silverpush’s audio beacon technology. (The letters explain in more detail other clues about how the apps are configured that suggest they might have that capability.) But nowhere did we see disclosures to consumers about the audio beacon’s functionality.
For now, Silverpush is saying that no TV shows currently aimed at U.S. households are embedded with the code necessary to activate the audio beacon. But the letters make it clear that if an app allows third parties to monitor U.S. consumers’ TV-viewing habits – and its statements or user interfaces state or imply otherwise – that could constitute a violation of the FTC Act.
After suggesting that developers read Marketing Your Mobile App: Get It Right From the Start, the letters end with the verbal equivalent of that point-to-our-eyes and then point-to-you universal symbol for “We’re monitoring this.”
The big-picture message for businesses is to avoid data surprises. It’s unwise to collect information that consumers wouldn’t expect. Furthermore, if you use software tools developed by other companies, ultimately you’re still responsible for explaining your app’s functionality to consumers.