Mobile Apps - Legal and Practical Considerations

Copyright 2012 Bryan CaveCopyright 2013 BryanCave LLP
Copyright 2014 BryanCave LLP
May 29, 2014
Jason D. Haislmaier
jason.haislmaier@bryancave.com
Mobile Apps
Practical and Legal Considerations
Matt McKinney
mmckinney@kkofirm.com

Increasingly Omnipresent
http://pewinternet.org/Reports/2013/Smartphone-Ownership-2013/Findings.aspx

Increasingly Omnipresent
Increasingly Important
Increasingly Scrutinized

Practical → Legal
Purpose
Functionality
Platform

Purpose of the App

Functionality of the App
Functionality is Key to Understanding Legal Issues
• Operates - App simply operates
• Collects – Data from device or user or both
• Connects – To other services or databases or peripherals What does the
app actually do?
• Utilizes – Native functionality of the device (GPS, lights, camera,
accelerometer)
• Shares – Data and information from user or with user
• Ecommerce – Purchase products & services

Platforms, Channels, and Devices
1.75 BILLION smart phones worldwide
7000 different devices access FB daily

Plan for Development?

Mobile App Development Plan
Development Plan Helps Drive Development Agreement
• Good project management & involving all necessary business units
drives success
• Legal team needs to understand
– What will the app do?
– business goals to identify risk areas
• Budgets can vary wildly – must perform diligence on third party
developers
• Who’s involved: Marketing, IT/engineering, product manager, legal,
security, data privacy

• Going it alone? Form an entity
• Enter IP ownership & confidentiality agreements with employees and third
party developers
• Consider protecting IP with copyright, trademarks, patents, and trade
secrets
• Are you sensitive to the inclusion of third party code in the mobile app?
Mobile App Development Agreement
Ownership and IP Protection

Mobile App Development Agreement
Additional Considerations
• Statements of Work contain essential provisions
– Timelines & schedules
– Specifications & requirements
• Non-Competition
– Any unique competitive issues?
• Support & Maintenance
– What is developer’s role with ongoing support & maintenance, particularly w/r/t
changes in devices and distribution platforms

Terms of Service
Privacy Policy

Terms of Service (EULA)
Terms of Service
• The app is simply software, a license agreement is critical
– Protect property
– Apportion rights
– Limit liability
• Most platforms have a default license agreements
– Many gaps
– Not tailored to your app
• Often more complicated than a basic software license
– Not *just* software, but part of larger service
– Interaction with other systems, services, devices
• Increasing the likelihood of enforceability
– Simplicity and readability
– Implementation

Terms of Service and Privacy Policy
Privacy Policies
• Long-standard online document
• Describe the ways in which data is collected, used, and shared
• Viewed as voluntary (and often overlooked), now the norm (and required)
• Not just a “policy,” but a set of “promises”
• Increasing requirements (and challenges)
– Describe data collection, usage, and sharing practices
– Disclose data protection (security) practices
– Obtain consent to use of personal data
– Provide opt-out right of certain uses
– Address (growing list of) specific state and federal legislation
– Cover changes in company practices
– All while maintaining transparency and clarity

Implementation

The Mobile “Click-Through”

Privacy Policy
Link In-App Store
Privacy Policy
Link In-App

In-Menu Opt-OutIn-App Opt-In

Content
Yours
Theirs
The Crowd’s
Developed and Owned
Third-Party Licensed
User-Generated (UGC)

Content
Public Domain
Very limited

Content
Digital Millennium Copyright Act of 1998
(17 U.S.C. 512, 1201-05, 1301-22; 28 U.S.C. 4001)

Content
The DMCA
OSP Safe Harbor

Applicable Regulations?

Regulation of Mobile Apps

Just Because It’s An App, Doesn’t Mean It’s Not Regulated
• Some regulations you may expect
– Children's Online Privacy Protection Act of 1998 (COPPA)
– Gramm-Leach-Bliley Act (1999)
– Health Insurance Portability and Accountability Act of 1996 (HIPAA)
• Many others you may not expect
– The Electronic Communications Privacy Act (1986)
– Fair Credit Reporting Act (1970)
– Telephone Consumer Protection Act of 1991

FDA Guidance for Industry
and Food and Drug Administration Staff
(September 25, 2013)

Data
Privacy
Security

Increasing Focus
On Mobile
Data Privacy and Security

Source: http://www.thedatamap.org

Federal
State
Self-regulatory

Federal Trade Commission Act
(15 U.S.C. 41, et seq)
“Unfair or deceptive acts or practices”

California Online Privacy Protection Act
(Cal OPPA)
(Cal. Bus. & Prof. Code §§ 22575 -22579)

Codes of Conduct

Emerging Models
For Compliance

In re Goldenshores Technologies, LLC
(FTC File No. 132 3087, December 5, 2013)

Knowing and disclosing
What data you collect
How you use that data
Where you share that data
“Transparency establishes trust.”

Closing Thoughts
Many New Rules Apply
• Apps are software, services, and often a whole lot more
• Apps are growing ever more sophisticated
• Not all apps are created equal, so don’t treat them that way
• Take the time to understand the nature and functionality of the app
• Not always WWGD (or WWfbD)
• Data and content are focal points for regulation and enforcement
• Industry codes of conduct cannot be ignored
• Transparency establishes trust

Thank You.
Jason Haislmaier
jason.haislmaier@bryancave.com
@haislmaier
http://www.linkedin.com/in/haislmaier
Matt McKinney
mmckinney@kkofirm.com
http://www.linkedin.com/in/mattsmckinney

Mobile Apps - Legal and Practical Considerations

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