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Privacy Tracker | Lawsuit against weather app sign of things to come? Related reading: EDPB releases 2018 annual report

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Recently, the office of the Los Angeles City Attorney, Mike Feuer, filed a complaint against The Weather Channel Product and Technology, LLC (TWC)—the company owned by IBM and behind the popular Weather Channel mobile application. Feuer stated: “[W]e allege TWC elevates corporate profits over users’ privacy, misleading them into allowing their movements to be tracked, 24/7. We’re acting to stop this alleged deceit.”

This action may encourage state attorneys general across the country to consider filing similar complaints.

The complaint cites California’s Unfair Competition Law (Bus. & Prof. Code §§ 17200–210) and alleges that TWC’s use of the application to collect “users’ private, personal geolocation data . . . throughout the day and night” is “fraudulent and deceptive,” and “unfair.” The complaint alleges that users believe “their data will only be used to provide them with ‘personalized local weather data, alerts and forecasts.’” Instead, “TWC’s core business is amassing and profiting from user location data.”

According to the complaint, TWC markets its product as merely a weather application to consumers, describing it as “the world’s most downloaded weather app,” and then “takes advantage of its app’s widespread popularity by using it as an intrusive tool to mine users’ private geolocation data.” The data is then shared with IBM affiliates and sold to third parties for purposes unrelated to weather. The City Attorney emphasizes that the geolocation data at issue is not limited to “general information about the state, city, or zip code,” but rather “the app tracks users’ movements in minute detail, even when they are not actively using it.”

The method of the application’s request for user consent to track their location is a key issue for the City Attorney. The complaint alleges that the application “does not disclose to users that TWC will transmit [] data to third parties,” nor does it describe the purposes for which the data will be used when it seeks a user’s permission to track their location information. It also fails to reference or link to additional information about geolocation tracking when seeking a user’s consent.

Notably, such information is available in the application’s privacy settings and TWC’s privacy policy, but the City Attorney declares these disclosures “vague[]” and “undefined.” The complaint also alleges that “TWC intentionally obscures this information because it recognizes that many users would not permit the Weather Channel App to track their geolocation if they knew the true uses of that data.” The complaint concludes that users “have no reason to seek such [additional] information” based on the behavior of the permissions screen with which users are prompted when they install the application.

Application permissions prompt when installing “The Weather” application in the U.S.

Application permissions prompt when installing “The Weather” application in the U.S.

In comparison to the prompt U.S. users see upon installation of the application, European users are presented with a more detailed disclosure

In comparison, European users are presented with a more detailed disclosure.

The complaint is notable because every state has its own version of an unfair and deceptive acts and practices (UDAP) statute and it creates a blueprint for authorities in other states to follow. These laws are “[b]road, flexible prohibitions of unfair and deceptive practices” and may “be the backbone of consumer protection in every state.” Feuer stated a desire for his action to be the first of many: “These issues certainly aren’t limited to our state . . . . Ideally this litigation will be the catalyst for other action—either litigation or legislative activity.”

Subsequent actions would be consistent with historical trends regarding the activity of state attorneys general. State AGs have long been active participants in efforts to regulate the collection and use of consumer data, and state UDAP laws “are central to privacy-related enforcement activity.” Armed with broad UDAP authority, and a public appetite for privacy-protective enforcement, the Los Angeles City Attorney’s complaint may spark a new wave of privacy-related state AG activity.

photo credit: 1442 Lightning-6 via photopin (license)

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