As mobile apps grow, so do potential problems

By Alan S. Wernick, Esq.

Mobile app security“Mobile apps” are becoming as ubiquitous as mobile phones. Today, mobile apps provide increasingly numerous functions for mobile phones to interact with you as well as with other devices. All of those interactions have significant business, technology and legal implications.
For instance, mobile app issues can include copyright, trademark, patent, trade secret, contract, tort, privacy, TCPA, Children's Online Privacy Protection Act, CAN-SPAM, Federal Communications Commission, Federal Trade Commission, licensing, open source and class-action legal issues, to name a few. These issues concern not only manufactures of mobile phone devices but app developers as well.
The mobile phone and mobile app industry is ripe with patent infringement risks. Headline news has been made by the patent infringement cases involving Apple and Samsung. Even the Angry Bird app has been the target of patent infringement. The lesson for mobile app developers (and manufacturers) is to be aware of the patent pool in which your technology is designed to play. Protect your intellectual property rights proactively. Promptly respond if you become aware of possible risk of infringing activity whether it’s a third party infringing your patent rights (or other intellectual property rights) or you become aware of the possibility that your mobile app may be infringing.

Promissory fraud
In Haught v. Motorola Mobility, Inc. (8/23/2012), the U.S. District Court for the Northern District of Illinois denied a motion to dismiss a class-action lawsuit in a case example of tort law interacting with mobile apps. The case involves the manufacturer of a mobile phone announcing a future upgrade of the operating system of its mobile device. A consumer purchased the mobile device allegedly in reliance on that representation only to find (after the return policy expired) that the manufacturer was not going to provide the upgrade. Although the outcome of this lawsuit has not yet been determined, the case provides one example of how promissory fraud (tort) issues may arise with mobile devices. 
On May 25, 2012, the FCC announced an inquiry into privacy and security of information stored on mobile communication devices. The public notice solicited comments regarding the privacy and data-security practices of mobile wireless service providers with respect to customer information stored on their users' mobile devices and the application of existing privacy and security requirements to that information. The FCC’s questions include:

  • How have those practices evolved since the FCC collected information on this issue in the 2007?
  • Are consumers given meaningful notice and choice with respect to service providers' collection of usage-related information on their devices
  • Do current practices serve the needs of service providers and consumers and in what ways
  • Do current practices raise concerns with respect to privacy and data security?

The FTC and other regulators are also looking into privacy issues concerning mobile apps. As wireless service providers and mobile app developers become stewards of sensitive customer and business data, including personal identifying information, how will the law and regulations evolve? Will wireless service providers and mobile app developers be viewed differently or the same as Internet service providers?

What these developments mean for mobile app developers and the businesses hiring mobile app developers is that they, and their legal advisers, must be mindful of the evolving legal issues. When the subpoena is served with the complaint alleging violations of these and other legal rights, this is not the time to ask, "Is there an app for that?" to wish away the pending legal liabilities.

By Alan S. Wernick, Esq., Partner, FisherBroyles, LLP.  




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