How to control the "willful" App in the mobile phone
□ Reporter Han Dandong
□ Intern Qi Zengbei
Recently, some netizens found that many apps installed on their mobile phones frequently start, access and read mobile phone information frequently. One of the mobile teaching software "You Academy" accessed mobile phone photos and files nearly 25,000 times in more than 10 minutes; the other office software "TIM" tried to start nearly 7000 times within 1 hour.
The industry believes that the reason why the App needs to collect user information as widely as possible is actually to achieve precise marketing. There are also professionals who say that frequent launches of the app can increase the flow data of the app such as "daily active users", which is an important reference for the app to obtain financing and advertising revenue.
So, what kind of citizens' rights are violated by the App's frequent self-starting collection of personal privacy? Does the app developer or operator need to be held accountable? And how to regulate the behavior of App to collect personal information?
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Violation of citizens' personal information
According to Zheng Ning, director of the Law Department of the Cultural Industry Management School of Communication University of China, the frequent self-launch, access and reading of mobile phone information violates the personal information of citizens.
According to Zheng Ning, personal information is all kinds of information recorded electronically or in other ways that can identify a specific natural person alone or in combination with other information, including the natural person’s name, date of birth, ID number, biometric information, address, and phone number , E-mail, health information, whereabouts information, etc. Some personal information is private, that is, private. Privacy is the tranquility of the private life of natural persons and private spaces, private activities, and private information that are unwilling to be known to others.
Lin Rencong, director of the construction and real estate professional committee of Yinghe Law Firm, added that the frequent self-launch, access and reading of mobile phone information by the App also violated the privacy rights of citizens’ personal rights, and also violated consumers’ independent choices and fairness. Trading rights.
According to Lin Rencong, the Consumer Rights Protection Law stipulates that consumers have the right to choose goods or services independently. Consumers have the right to independently choose operators who provide commodities or services, independently choose the types of commodities or service methods, and voluntarily decide to purchase or not to purchase any kind of commodities, or to accept or not to accept any service. At the same time, the Consumer Rights Protection Law also stipulates that consumers enjoy the right to fair transactions. When purchasing goods or receiving services, consumers have the right to obtain fair trading conditions such as quality assurance, reasonable prices, and correct measurement, and have the right to refuse operators’ compulsory trading behavior.
Collect information for precise marketing
Violation of market economy guidelines
Regarding whether the developer or operator of the app needs to be held responsible, Zheng Ning believes that the Cyber Security Law stipulates the basic principles for collecting and using personal information, and that network operators should follow the principles of lawfulness, legitimacy and necessary to collect and use personal information. The public collection and use rules clearly state the purpose, method and scope of the collection and use of information, and are approved by the person being collected. Network operators shall not collect personal information unrelated to the services they provide, shall not violate the provisions of laws and administrative regulations and the agreement of both parties to collect and use personal information, and shall handle their storage in accordance with the provisions of laws and administrative regulations and the agreement with users Personal information.
In Lin Rencong's view, first of all, App operators collecting user information and doing “precision marketing” violated anti-unfair competition laws and were suspected of unfair competition. The Anti-Unfair Competition Law stipulates that operators who use the Internet to engage in production and business activities shall abide by the provisions of this Law. Operators may not use technical means to influence or disrupt the normal operation of network products or services legally provided by other operators by affecting user choices or other methods.
Lin Rencong said that frequent self-starting of the app can increase the flow data of the app such as "daily active users", which is suspected of false propaganda. The Anti-Unfair Competition Law stipulates that operators shall not make false or misleading commercial propaganda to deceive or mislead consumers about the performance, function, quality, sales status, user evaluation, and previous honors of their products. Operators are not allowed to help other operators carry out false or misleading commercial propaganda by organizing false transactions.
"In addition, it may also constitute a civil infringement or even a criminal offense. The crime of infringing citizens' personal information in the criminal law is clear, and in violation of the relevant state regulations, selling or providing citizens' personal information to others. Or be detained in prison and impose a fine or a single fine; if the circumstances are particularly serious, impose a fixed term of imprisonment of three years or more and seven years and fines. Violating the relevant state regulations, the personal information of citizens obtained in the process of performing their duties or providing services will be sold If it is provided to others, it shall be severely punished in accordance with the provisions of the preceding paragraph. Those who steal or otherwise illegally obtain citizens’ personal information shall be punished in accordance with the provisions of the first paragraph. The directly responsible person in charge and other directly responsible persons shall be punished in accordance with the provisions of this paragraph." Lin Rencong said.
Zheng Ning believes that precision marketing is a business model commonly adopted by the Internet industry in the era of big data, but this model should comply with relevant laws and regulations and must not excessively collect personal information.
Lin Rencong bluntly stated that in order to achieve precise marketing purposes, the frequent self-launch of the App and the widespread collection of user information do not meet the market economic guidelines for free, equal, and fair competition. The market economy is essentially an economy where the market determines the allocation of resources. However, the market does not have a complete decisive role, and market entities must act within the framework of law. App operators' "precision marketing, frequent launch of App" and other means are mostly abusing their dominant position in information asymmetry between users and forcing users to allow them to access basic information before they can use the app. This practice violates the market main body. The principle of equality and free trading also undermines the requirement of equal competition.
Improve credit supervision mechanism
Implement corporate responsibility
So, for users, how to prevent the leakage of personal information?
Lin Rencong suggested that users should carefully check the option to allow App to freely access their own information. If an App that is forced to be checked is used, it should promptly report the situation to the manufacturer, App download platform and relevant departments; report any information leaks; Restrict traffic to the corresponding App, limit background startup, etc. At the same time, to avoid eavesdropping and eavesdropping, users should turn off the microphone, camera, location search, and access to personal information of such apps.
As for how to control the phenomenon that App frequently starts, accesses, and reads mobile phone information, Zheng Ning suggests: law enforcement departments increase law enforcement; improve complaint reporting and credit supervision mechanisms; strengthen industry self-discipline; and implement the main responsibility of enterprises to protect personal information.
In Lin Rencong's view, in accordance with the requirements of the "Mobile Internet Application Information Service Management Regulations", mobile Internet application providers should strictly implement information security management responsibilities and perform "six obligations" according to law: "The principle of real identity information authentication for registered users; the second is to establish and improve the user information security protection mechanism; the third is to establish and improve the information content audit management mechanism, for the release of illegal and illegal information content, as appropriate, take warnings, restrict functions, suspend Disposal measures such as updating and closing accounts; Fourth, protect users' right to know and choose during installation or use according to law; Fifth, respect and protect intellectual property rights, and must not make or publish applications that violate the intellectual property rights of others; Sixth, record users Log information and save it for sixty days.
According to the Consumer Rights Protection Law, operators should follow the principles of lawfulness, legitimacy, and necessary to collect and use consumer personal information, express the purpose, method, and scope of the collection and use of information, and obtain consumer consent. When collecting and using consumer personal information, business operators shall disclose their collection and use rules, and shall not violate the provisions of laws and regulations and the agreement of both parties to collect and use information. The operators and their staff must keep the collected personal information of consumers strictly confidential, and must not disclose, sell or illegally provide it to others. Operators should take technical measures and other necessary measures to ensure information security and prevent consumer personal information from being leaked or lost. When information leakage or loss occurs or may occur, remedial measures shall be taken immediately. Business operators shall not send commercial information to consumers without their consent or request, or consumers expressly refuse.
Lin Rencong said that the collection and use of user personal information should be legal and well-founded; protect the customer’s right to know and choose when installing and using the app. Without the user’s consent, it is not allowed to open the collection of geographic location, read the address book, use the camera, enable recording, etc. Function, you must not enable functions that are not related to the service.