October 15, 2019

October 14, 2019

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No Means No

Researchers from the International Computer Science Institute found up to 1,325 Android applications (apps) gathering data from devices despite being explicitly denied permission.

The study looked at more than 88,000 apps from the Google Play store, and tracked data transfers post denial of permission. The 1,325 apps used tools, embedded within their code, that take personal data from Wi-Fi connections and metadata stored in photos.

Consent presents itself in different ways in the world of privacy. The GDPR is clear in defining consent as it pertains to user content. Recital 32 notes that “Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data…” Consumers pursuant to the CCPA can opt-out of having their personal data sold.

The specificity of consent has always been a tricky subject.  For decades, companies have offered customers the right to either opt in or out of “marketing,” often in exchange for direct payments. Yet, the promises have been slickly unspecific, so that a consumer never really knows what particular choices are being selected.

Does the option include data collection, if so how much? Does it include email, text, phone, postal contacts for every campaign or just some? The GDPR’s specificity provision is supposed to address this problem. But companies are choosing to not offer these options or ignore the consumer’s choice altogether.

Earlier this decade, General Motors caused a media dust-up by admitting it would continue collecting information about specific drivers and vehicles even if those drivers refused the Onstar system or turned it off. Now that policy is built into the Onstar terms of service. GM owners are left without a choice on privacy, and are bystanders to their driving and geolocation data being collected and used.

Apps can monitor people’s movements, finances, and health information. Because of these privacy risks, app platforms like Google and Apple make strict demands of developers including safe storage and processing of data. Seven years ago, Apple, whose app store has almost 1.8 million apps, issued a statement claiming that “Apps that collect or transmit a user’s contact data without their prior permission are in violation of our guidelines.”

Studies like this remind us mere data subjects that some rules were made to be broken. And even engaging with devices that have become a necessity to us in our daily lives may cause us to share personal information. Even more, simply saying no to data collection does not seem to suffice.

It will be interesting to see over the next couple of years whether tighter option laws like the GDPR and the CCPA can not only cajole app developers to provide specific choices to their customers, and actually honor those choices.

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

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About this Author

Dominic Dhil Panakal Womble Atlanta
Associate

Dominic is a member of the firm’s IP Transactions, FinTech, and Privacy and Cybersecurity practices.

Dominic advises clients on international and domestic data privacy laws.  He also assists in drafting Software as a Service agreements, privacy policies, terms of use, and licensing contracts.

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