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Copyright (c) 2016 Tulane Journal of Technology & Intellectual Property 
Tulane Journal of Technology & Intellectual Property

ARTICLE: Reconsidering Privacy-Promising Technologies

Fall, 2016

Tulane Journal of Technology and Intellectual Property

19 Tul. J. Tech. & Intell. Prop. 1


Jasmine McNealy* and Heather Shoenberger+


I. Introduction

In December 2014, the Federal Trade Commission (FTC) approved its final order settling charges against Snapchat, Inc., a mobile application (app) company that claimed users could send messages that would "disappear" at a specified time in spite of attempts to save them. 1 The original complaint issued against Snapchat was based on six counts of deceptive acts and practices. 2 These deceptive acts included claims by Snapchat that messages sent from the app would automatically erase after the amount of time set by the user and that users would be notified if the receiver had taken a screenshot of a message. 3 Neither claim by Snapchat proved true. Message-retrieval methods were widely publicized and reported in the technology press circles 4 : computer forensic experts discovered simple ways to find "deleted" messages 5 and users found ways to outwit the screenshot notice feature. 6 Consequently, Snapchat's settlement order forbade the app from continuing to make similar claims related to its messages. 7

Perhaps more important than the FTC's settlement with Snapchat is the power with which the FTC brought a claim against the company. With the passage of the Federal Trade Commission Act of 1912, Congress granted the FTC broad powers to regulate advertising and trade practices that are false, deceptive, or misleading. 8 When evaluating whether advertisements or practices are deceptive, the FTC thus uses a three-part test that evaluates: (1) whether there was a practice, representation, or omission; (2) ...
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