By way of background, the DAA is a consortium of media and marketing associations that has designed and implemented a self-regulatory compliance regime in an effort to address the IBA notice and choice expectations of the Federal Trade Commission (FTC). In May of this year, the IBA accountability program issued three decisions enforcing the self-regulatory program as applied to the mobile environment, as articulated in the DAA’s Mobile Guidance of 2013.
In its recent enforcement actions, the IBA accountability program appears to have exported this manifestation of the enhanced notice requirement to mobile applications, notwithstanding the provisions of the Mobile Guidance. That guidance itself states that app publishers (i.e., “first parties”) that permit third parties to collect information for IBA purposes must “provide a clear, meaningful, and prominent link to a disclosure that either points to a choice mechanism or setting that meets Digital Advertising Alliance specifications or individually lists such Third Parties.” This notice must be provided in two separate locations:
Finally, the Mobile Guidance states that first parties should “indicate adherence” to the DAA Principles in their privacy policies. The accountability program decisions noted the absence of this language in the companies’ privacy policies, and the companies appear to have added language to their disclosures to comply with this obligation. Whether a company would want to affirmatively make this representation of its own accord is something that may warrant additional consideration, as the company’s failure to fully comply with such a representation could give rise to a charge of deception under Section 5 of the FTC Act or a similar state law.
* * *
In light of these developments, a company engaged in IBA should:
 IBA is the collection of information about users’ online activities across different websites or mobile applications, over time, for the purpose of delivering online advertising to those users based on those activities.
 Formally, the Advertising Self-Regulatory Council/Council of Better Business Bureau’s Online Interest-Based Advertising Accountability Program.
 For background on the DAA program and its applicability to the mobile environment, see our MoFo Privacy Minute of June 19, 2015, Digital Advertising Alliance Focuses on Mobile Ads.