February 2013

UK mobile operators Vodafone and 3 have asked for permission to run 4G mobile services over the airwaves they use for existing mobile services.

Currently EE is the only UK operator that can run 4G services over those parts of the radio spectrum. Telecoms regulator Ofcom has started a public consultation exercise on the proposal that runs until 29 March. Ofcom is currently running an auction to sell off unused airwaves that can support 4G services. The two mobile operators want to be able to pipe futuristic 4G services over parts of the radio spectrum that, on their networks, are reserved for earlier generations of mobile technology. Among other things, 4G promises to improve web browsing speeds while on the move and make a host of other mobile applications much more feasible.

The Federal Trade Commission issued a staff report recommending ways that key players in the rapidly expanding mobile marketplace can better inform consumers about their data practices.

The report makes recommendations for critical players in the mobile marketplace: mobile platforms (operating system providers, such as Amazon, Apple, BlackBerry, Google, and Microsoft), application (app) developers, advertising networks and analytics companies, and app developer trade associations. Most of the recommendations involve making sure that consumers get timely, easy-to-understand disclosures about what data they collect and how the data is used. The report describes the explosive growth of mobile services: in the fourth quarter of 2012, consumers worldwide bought approximately 217 million smartphones. Smartphones and tablets offer a wide variety of benefits to consumers. They can be used to make audio and video phone calls, find the nearest coffee shop or gas station, check traffic, browse a digital library while waiting for an appointment, and connect with friends for spontaneous get-togethers. At the same time, the report states that mobile technology raises unique privacy concerns. More than other types of technology, mobile devices are typically personal to an individual, almost always on, and with the user. This can facilitate unprecedented amounts of data collection. In addition, since a single mobile device can facilitate data collection and sharing among many entities, consumers may wonder where they should turn if they have questions about their privacy.

The report cites recent data showing that consumers increasingly are concerned about their privacy on mobile devices. For example, 57 percent of all app users have either uninstalled an app over concerns about having to share their personal information, or declined to install an app in the first place for similar reasons. Less than one-third of Americans feel they are in control of their personal information on their mobile devices.

The report recommends that mobile platforms should:

• Provide just-in-time disclosures to consumers and obtain their affirmative express consent before allowing apps to access sensitive content like geolocation;
• Consider providing just-in-time disclosures and obtaining affirmative express consent for other content that consumers would find sensitive in many contexts, such as contacts, photos, calendar entries, or the recording of audio or video content;
• Consider developing a one-stop “dashboard” approach to allow consumers to review the types of content accessed by the apps they have downloaded;
• Consider developing icons to depict the transmission of user data;
• Promote app developer best practices. For example, platforms can require developers to make privacy disclosures, reasonably enforce these requirements, and educate app developers;
• Consider providing consumers with clear disclosures about the extent to which platforms review apps prior to making them available for download in the app stores and conduct compliance checks after the apps have been placed in the app stores; and
• Consider offering a Do Not Track (DNT) mechanism for smartphone users. A mobile DNT mechanism, which a majority of the Commission has endorsed, would allow consumers to choose to prevent tracking by ad networks or other third parties as they navigate among apps on their phones.

App developers should:

• Have a privacy policy and make sure it is easily accessible through the app stores;
• Provide just-in-time disclosures and obtain affirmative express consent before collecting and sharing sensitive information (to the extent the platforms have not already provided such disclosures and obtained such consent);
• Improve coordination and communication with ad networks and other third parties that provide services for apps, such as analytics companies, so the app developers can better understand the software they are using and, in turn, provide accurate disclosures to consumers. For example, app developers often integrate third-party code to facilitate advertising or analytics within an app with little understanding of what information the third party is collecting and how it is being used.
• Consider participating in self-regulatory programs, trade associations, and industry organizations, which can provide guidance on how to make uniform, short-form privacy disclosures.

Advertising networks and other third parties should:

• Communicate with app developers so that the developers can provide truthful disclosures to consumers;
• Work with platforms to ensure effective implementation of DNT for mobile.
• App developer trade associations, along with academics, usability experts and privacy researchers can:
• Develop short form disclosures for app developers;
• Promote standardized app developer privacy policies that will enable consumers to compare data practices across apps;
• Educate app developers on privacy issues.

After nearly four years as the head of the Federal Trade Commission, Chairman Jon Leibowitz announced he will step down on February 15, 2013. He has been a Commissioner since September 3, 2004.

Leibowitz, who became FTC chair in the wake of the economic downturn in March 2009, continued the agency’s groundbreaking work on consumer protection and competition issues. “I have been honored to head this extraordinary, bipartisan Commission and to work alongside the best staff in federal government,” said Chairman Leibowitz. “Our small but mighty agency has safeguarded the privacy of Americans and stopped predatory financial practices by companies taking advantage of cash-strapped consumers. Our antitrust enforcement has helped contain health care and drug costs, and helped reduce prices and increase innovation for smartphones, computer chips and other high-tech products.” Setting his priorities as protecting consumer privacy, stopping financial scammers, and promoting competition in health care and high-tech markets, Leibowitz steered the Commission to major enforcement actions and cutting-edge policy work. In the past four years, enforcement has been a major priority at the FTC.

Most recently, the Commission announced a landmark agreement with Google to ensure consumers would continue to be able to buy a variety of high-tech devices from smartphones to games to tablets. The settlement gives competitors access to standard-essential patents, and ensures that companies that advertise on Google’s website will have more flexibility to use rival search engines.

[Commentary] Late in 2012, AT&T proposed that the U.S. telephone network is dying, replaced by the Internet – and Federal Communications Commission rules underpinning that old order should expire with it. AT&T on November 7 said it would invest $14 billion to build more high-speed Internet connections over wires and wireless infrastructure, but tied that planned spending to a request for regulatory changes. Generally, AT&T wants regulators to set a date for extinguishing the requirement to maintain the old network and to declare the IP network is “subject to minimal regulation only at the federal level.” Specifically, AT&T has petitioned the FCC to oversee some trials of retiring the “plain old telephone system” (POTS) and transitioning to networks running Internet protocols (IP) in order to “capture and address the operational, technical and policy issues that necessarily will arise.” This week, we got a taste of how other stakeholders think about the proposed transition.