Yesterday, the Federal Trade Commission issued warning letters to 12 application developers because the apps use the software, Silverpush.   According to the FTC, Silverpush is designed to monitor a user's television use regardless of whether the user is actively using the particular app, enabling it to provide a detailed record of the consumer's television use for the purpose of marketing analytics and targeted advertising. The FTC instructed the app developers to notify consumers if the software is being used in the U.S., which Silverpush claims it is not. 

According to the FTC, the 12 app developers asked users for permission to use the device's microphone, even though the apps didn't have a need for that functionality. If the app developers' statements state or imply that the apps aren't collecting and transmitting TV viewing data when in fact they do, the letter warned that such practices could violate Section 5 of the FTC Act.  It concluded by reminding the App Developers that they are encouraged to follow the FTC's guidelines on marketing.

The letter’s warning is a timely reminder that companies should stay vigilant in reexamining their licenses between the app providers/developers and the operating system distributors, to ensure that they delineate the obligations and warranties regarding the marketing practices, and a consistent discussion of and compliance with those disclosed practices. The FTC’s focus on app developers is an interesting juxtaposition to a recent court decision, which did not hold a company liable for tracking the viewing habits of users of its free TV app, through third party software, because the app was free and there was no direct, customer relationship with the company. Companies, regardless of whether they are the developer or owner of the platform, should conduct an ongoing evaluation of their disclosures and warranties of the collection and marketing practices related to Apps, both in their own privacy policy as well as the policies of third parties with which they partner, to ensure that there is a consistent and compliant approach.