Thursday, March 06, 2014

Privacy Paternalism - EPIC's FTC Complaint against Facebook's Acquisition of WhatsApp

Not all privacy lawyers or advocates always agree. This is one of those times. A well-respected privacy advocacy/watchdog group filed a complaint before the FTC in the US to stop FB's acquisition of WhatsApp.

They allege that Facebook's use of users' data would fly in the face of WhatsApp's pro-privacy approach.

"EPIC has filed a complaint to the Federal Trade Commission concerning Facebook's proposed purchase of WhatsApp.WhatsApp is a messaging service that gained popularity based on its strong pro-privacy approach to user data. WhatsApp currently has 450 million active users, many of whom have objected to the proposed acquisition. Facebook regularly incorporates data from companies it has acquired." (from EPIC's announcement page)

EPIC states that the FTC has "looked favorably" on its prior complaints against industry leaders, such as Google, Microsoft and Facebook. It has, but not in the way implied. The FTC has never stopped an acquisition based on the fear that the purchaser might change an acquisition's privacy practices.

To ask them to do so now doesn't make sense. And it is disrespectful to users who can make choices and vote by the dollars. EPIC shouldn't decide what data collection and use practices WhatsApp should have, as long as they don't violate existing applicable law. And these don't.

Anything else is Privacy Paternalism.

EPIC stated that WhatsApp is pro-privacy. It is. The Canadian Office of the Privacy Commissioner investigated them and concluded that WhatsApp could improve its privacy practices, which it voluntarily did. They collect only what they need, and often discard that after use.

The are also anti-advertising, ad free, and say that they hope to keep it that way forever.

At the same time, they reserve the right to change the terms of service at any time, which includes their privacy notice which is entirely incorporated into its terms of service.

To do that, they must provide notice of any changes and users must agree to those changes or stop using the service.

If users don't like the Facebook acquisition or don't like any changes made to them after the acquisition, they can use a different mobile messaging app. They can do what consumers always do, vote with their dollars.

There are many choices available to users - how they want their data collected and used and which provider they want to use based on the foregoing.

Facebook wants value for the $19 billion. It is highly unlikely that it intends to alienate the hundreds of millions of users WhatsApp has.

If you're not sure what to think, read what I set forth below. The policies are clear and explain it all in a way all users can understand. And all users accepted.

While few people ever read the terms of service or privacy policies, I have collected the relevant provisions from each and pasted them below.

Relevant Provisions from WhatsApp Current Terms of Service and Privacy Notice (March 6, 2014)
(selected by Parry Aftab, Esq.)

10. Assignment
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by WhatsApp without restriction.
Privacy Notice:
This Privacy Policy is incorporated into and is subject to the WhatsApp Terms of Service. Your use of the WhatsApp Site, WhatsApp Software and the WhatsApp Service and any personal information you provide on the WhatsApp Site or WhatsApp Service remains subject to the terms of this Privacy Policy and our Terms of Service.

What Does This Privacy Policy Cover?

This Privacy Policy is part of WhatsApp’s Terms of Service and covers the treatment of user information, including personally identifying information, obtained by WhatsApp, including information obtained when you access the WhatsApp’s Site, use the WhatsApp Service or any other software provided by WhatsApp.

The Information WhatsApp Does Not Collect

WhatsApp does not collect names, emails, addresses or other contact information from its users’ mobile address book or contact lists other than mobile phone numbers—the WhatsApp mobile application will associate whatever name the WhatsApp user has assigned to the mobile telephone number in his/her mobile address book or contact list — and this occurs dynamically on the mobile device itself and not on WhatsApp’s servers and is not transmitted to WhatsApp. This means that if you have your friend’s mobile phone number associated with the name “Shakespeare” in your mobile address book, that’s the name that will appear for that mobile phone number in your WhatsApp contact list. We do not collect location data, but users may voluntarily share their location with other users via the WhatsApp Service.
The contents of messages that have been delivered by the WhatsApp Service are not copied, kept or archived by WhatsApp in the normal course of business. The WhatsApp Service is meant to be a SMS replacement, using data service through a user’s phone (either via cell network or wifi). Users type their messages, which are sent via data service to our servers, and routed to the intended recipient (who must also be a WhatsApp user), if that recipient is online. If the recipient is not online, the undelivered message is held in WhatsApp’s server until it can be delivered. If the message is undelivered for thirty (30) days, the undelivered message is deleted from our servers. Once a message has been delivered, it no longer resides on our servers. The contents of any delivered messages are not kept or retained by WhatsApp — the only records of the content of any delivered messages reside directly on the sender’s and recipient’s mobile devices (and which may be deleted at the user’s option). Notwithstanding the above, WhatsApp may retain date and time stamp information associated with successfully delivered messages and the mobile phone numbers involved in the messages, as well as any other information which WhatsApp is legally compelled to collect. Files that are sent through the WhatsApp Service will reside on our servers after delivery for a short period of time, but are deleted and stripped of any identifiable information within a short period of time in accordance with our general retention policies.

Third-party Advertisers, Links to Other Sites

We are not fans of advertising. WhatsApp is currently ad-free and we hope to keep it that way forever. We have no intention to introduce advertisement into the product, but if we ever do, will update this section.

In the Event of Merger, Sale, or Bankruptcy

In the event that WhatsApp is acquired by or merged with a third party entity, we reserve the right to transfer or assign the information we have collected from our users as part of such merger, acquisition, sale, or other change of control. In the (hopefully) unlikely event of our bankruptcy, insolvency, reorganization, receivership, or assignment for the benefit of creditors, or the application of laws or equitable principles affecting creditors' rights generally, we may not be able to control how your personal information is treated, transferred, or used.

Changes and updates to this Privacy Notice

This Privacy Policy may be revised periodically and this will be reflected by the "effective date" below. Please revisit this page to stay aware of any changes. Your continued use of the WhatsApp Site and WhatsApp Service constitutes your agreement to this Privacy Policy and any amendments.
Date Last Modified:
This Privacy Notice was last modified July 7th, 2012

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