The John Marshall Journal of Information Technology &

Privacy Law
Volume 30 | Issue 4 Article 6

Summer 2014

Now You See It, Now You Don’t . . . Or Do You?:

Snapchat’s Deceptive Promotion Of Vanishing
Messages Violates Federal Trade Commission
Regulations, 30 J. Marshall J. Info. Tech. & Privacy
L. 827 (2014)
Danielle Young

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Commons, Marketing Law Commons, Privacy Law Commons, and the Science and Technology
Law Commons

Recommended Citation
Danielle Young, Now You See It, Now You Don’t . . . Or Do You?: Snapchat’s Deceptive Promotion Of Vanishing Messages Violates
Federal Trade Commission Regulations, 30 J. Marshall J. Info. Tech. & Privacy L. 827 (2014)

http://repository.jmls.edu/jitpl/vol30/iss4/6

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NOW YOU SEE IT, NOW YOU DON’T . . .
OR DO YOU?: SNAPCHAT’S
DECEPTIVE PROMOTION OF
VANISHING MESSAGES VIOLATES
FEDERAL TRADE COMMISSION
REGULATIONS

DANIELLE YOUNG*

I. INTRODUCTION
Jessica Logan’s ex-boyfriend circulated a nude photo of Jessica that
she had sent to him to other students at the high school both teenagers
attended, destroying Jessica’s reputation. 1 A private college in Frank-
lin, Massachusetts, Dean College, suspended nine students following
the release of a video of a fight on campus that went viral on the

* Danielle Young was born and raised in New York, and is a 2015 J.D. candidate
at The John Marshall Law School in Chicago, Illinois. She graduated in 2012 from the
University of Florida in Gainesville, Florida with a Bachelor of Arts in Criminology. Dur-
ing her law school career, Danielle has served as Managing Business Editor of The Jour-
nal of Information Technology & Privacy Law, Secretary of the Black Law Students Asso-
ciation, Trial Advocacy & Dispute Resolution Honors Council Member, and ADR Team
Member. She would like to thank her family and friends for their unconditional love and
support, the JITPL staff for their editing guidance, and Dunkin’ Donuts for being open
twenty-four hours.
1. Katy Hastings, Teenager Commits Suicide after ‘Sexting’ a Nude Photo to her
Boyfriend Made her Life a Misery, DAILY MAIL (Mar. 10, 2009),
http://www.dailymail.co.uk/tvshowbiz/article-1161112/Teenager-commits-suicide-sexting-
nude-photo-boyfriend-life-misery.html (discussing the unfortunate event of an 18-year-old
student, Jessica Logan, who committed suicide after she appeared on television to share
her experience of being a victim of bullying at the high school she attended). In 2008, the
National Campaign to Prevent Teen and Unplanned Pregnancy surveyed teens and young
adults about sexting or posting such materials online; thirty-nine percent of U.S. teenag-
ers admitted to having sent or posted “sexually suggestive messages” and forty-eight per-
cent stated that they had received similar messages. Id.

827
828 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

Internet.2 Ashley Payne, a high school English teacher, was fired from
her teaching job for posting a picture on her private Facebook account
which showed her holding a glass of wine. 3 In a society where privacy is
determined by the settings on an individual’s social media account, in-
stances such as those above leave many social media users on pins and
needles.
So what happens when a new social media application is created?
For example, Snapchat is a new application which targets users be-
tween the ages of thirteen and twenty-four, claiming to delete photos
and videos sent from one app user’s cell phone to another app user’s cell
phone once the recipient of the photo or video views it. 4 What does a
typical adolescent do when he comes across such an application? Does
he read its lengthy privacy policy and compare it to regulations enforced
by the Federal Trade Commission (FTC) to ensure that the app com-
plies? Or, does he immediately download the application and begin
sending photos to his friends? The likely scenario is that the adolescent
downloads the app to his cell phone without any consideration of these
issues.
In an era where phone calls have been replaced by text messaging
and Skype is the new conference call, it is almost inevitable for individ-
uals to use these technologies to keep up with the fast paced world
around them. It is even more common that people using these technolo-
gies have sent or received risqué, embarrassing, or self-incriminating
data to a friend or significant other. Prior to hitting “send,” individuals
falsely believe that the insertion of a phrase such as “delete after you
see this” will protect them from liability. However, this belief is proven
wrong when social media outlets ruin another individual’s reputation.

2. Allie Grasgreen, Caught on Camera, INSIDE HIGHER ED. (Dec. 7, 2011),

http://www.insidehighered.com/news/2011/12/07/dean-college-uses-video-identify-expel-
students-fight. In December 2011 a group of students violently bullied and attacked an-
other student on the Dean College campus in the middle of the day. The attack was over
a pair of allegedly stolen sneakers. A video captured the entire incident and went viral.
Not only were the attackers punished, but so were the witnesses who did not step in to
help the victim. Id.
3. Erin Moriarty, Did the Internet Kill Privacy, CBS (Jan. 6, 2011),
http://www.cbsnews.com/8301-3445_162-7323148.html. When the school principal con-
fronted Payne, he asked, “Do you have a Facebook page?” Payne responded in the affirm-
ative, adding “I’m confused as to why I am being asked this.” The principal then brought
up the photos depicting her with alcohol. Payne was given two options: resignation or
suspension. Payne ultimately resigned and filed suit against the school district. Id.
4. New Snapchat App Worrying Parents, NBC (Dec. 4, 2012), http://www.nbc-
2.com/story/20259970/new-snapchat-app-worrying-parents. “With most users between the
ages of 13 to 24 and Snapchat’s cartoon ghost logo and self-described ‘juvenile’ interface,
expert Liz Gumbinner cautions that kids could be using the app in a much more adult
way.” Id.
2014] SNAPCHAT VIOLATES FTC REGULATIONS 829

It was only a matter of time before an app would be created in or-

der to delete these sensitive texts independent of the recipient’s actions
with the texts after they have been received. The solution? “Snap-
chat”—the mobile messaging application allowing users to send pictures
or videos, referred to as “snaps,” that disappear upon retrieval. 5 This
application, which promises to delete the snaps upon retrieval, not only
appeals to high school teenagers, but according to a recent study, 8 mil-
lion of the application’s users are adults.6 However, there is just one
problem—Snapchat does not entirely live up to its promise of having
photos and videos vanish forever.
This Comment will explore the recently popular application Snap-
chat, and discuss the ways in which the app’s privacy policy has violat-
ed FTC regulations, responding to a recent complaint filed by The Elec-
tronic Privacy Center.7 Particularly, this Comment will focus on
Snapchat’s deceptive promotion of “disappearing” photographs and vid-
eos. Section II will illustrate the basic structure of Snapchat, detailing
various illustrations of its use. Section II will also examine the regula-
tions set forth by the FTC that Snapchat is required to follow. Section
III will discuss possible methods that the average user can do in order

5. Larry Magid, What Is Snapchat and Why Do Kids Love It and Parents Fear It?
(Updated), FORBES (May 1, 2013),
http://www.forbes.com/sites/larrymagid/2013/05/01/what-is-snapchat-and-why-do-kids-lov
e-it-and-parents-fear-it/ (predicting that parents may have issues which their children
using the app, Snapchat utilized an outside safety expert to assist the company in creat-
ing a Snapchat Guide for Parents; the guide’s purpose is “to provide parents with detailed
information about our product, as well as suggestions for how to handle issues and con-
cerns that may arise”). The guide explains that although the application prohibits chil-
dren under the age of thirteen it does not request age upon sign up, so it is the responsi-
bility of the parents to supervise their children and report underage use. In addition, the
guide explains that messages can only be sent to individuals that the sender knows per-
sonally, and has added to their friends list. The guide assures parents that in the event of
a more serious situation, users have the option of blocking individuals from sending them
any media. Id.
6. Jennifer Van Grove, Snapchat Snapshot: App Counts 8M Adult Users in U.S.,
CNET (June 25, 2013), http://news.cnet.com/8301-1023_3-57590968-93/snapchat-snapshot-
app-counts-8m-adult-users-in-u.s/ (discussing Nielsen’s study of 5,000 U.S. adults who
have smartphones, it was found that Snapchat had 8 million users in May 2013 and
adults accessed the app approximately thirty-four times a day).
7. Jessica Guynn, Privacy Watchdog EPIC files Complaint against Snapchat with
FTC, L.A. TIMES (May 17, 2013), http://articles.latimes.com/2013/may/17/business/la-fi-tn-
privacy-watchdog-epic-files-complaint-against-snapchat-with-ftc-20130517. The Electron-
ic Privacy Information Center (EPIC), a “privacy watchdog group,” has filed a complaint
with the FTC for allegations that Snapchat’s messages do not actually self-destruct from a
user’s device and for the FTC to require the company to “improve its data security prac-
tices, and specifically to ensure that photos and videos are in fact deleted such that they
cannot subsequently be obtained by others.” Id.
830 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

to bypass the very thing Snapchat claims to prevent: the permanence of

photos and videos. Section III will also demonstrate the application’s
shortcomings in deleting the photograph and video files. Subsequently,
this Comment will identify how these specific shortcomings violate FTC
regulations. Finally in section IV, a legally focused proposal for Snap-
chat creators will be presented in order for Snapchat to realign itself
and abide by the FTC’s proposed regulations, specifically through its
privacy policy. The proposal addresses users’ privacy concerns while
still maintaining the FTC’s regulations and taking into consideration
Snapchat’s desire to prosper as a business entity.

II. BACKGROUND

A. SNAP WHAT?

A mobile application, also referred to as a mobile app, is a type of

application software designed to run on a mobile device such as a
smartphone or tablet computer.8 Apps are generally small, individual
software units with limited function.9 More often than not apps are
available to mobile device users for free. Developers often make money
through selling advertising space within the app, charging for upgraded
versions of the app, or charging for features within the app itself. 10
Snapchat is a mobile messaging application that since its conception
has stirred up much controversy.11
Two Stanford fraternity brothers, Evan Spiegel and Bobby Murphy,
released the infamous Snapchat application in September 2011. 12

8. Cory Janssen, Mobile Application, TECHOPEDIA,

http://www.techopedia.com/definition/2953/mobile-application-mobile-app (last visited
May 25, 2014).
9. Id.
10. Understanding Mobile Apps, On GUARD ONLINE,
http://www.onguardonline.gov/articles/0018-understanding-mobile-apps (last visited May
25, 2014).
11. Snapchat Rejected $3 Billion Offer from Facebook: Report, SYDNEY MORNING
HERALD, http://www.smh.com.au/it-pro/business-it/snapchat-rejected-3-billion-offer-from-
facebook-report-20131113-hv2n7.html (last visited May 30, 2014).
12. Alyson Shontell & Owen Thomas, Snapchat Founders Sued by Fellow Stanford
Student who says They Stole his Idea, BUS. INSIDER (Feb. 27, 2013),
http://www.businessinsider.com/snapchat-founders-sued-by-fellow-stanford-student-brow
n-2013-2#ixzz2gEardnEc. Fellow classmate Frank Reginald Brown IV has alleged that
Snapchat was originally his idea and that his dormmate Spiegal stole his idea. Brown
alleged that after hearing his idea, Spiegal called it a million-dollar idea. Brown, Spiegal,
and Murphy worked together to name the app Picaboo, a ghost serving as the icon for the
app. However, in August 2011, a dispute arose over the future of the app, Brown was ig-
nored by the others, and the app was relaunched under the name Snapchat. Id.
2014] SNAPCHAT VIOLATES FTC REGULATIONS 831

Rapidly rising to Facebook’s level of 350 million daily photo uploads,

Snapchat users are now sharing over 100 million “snaps” daily. 13 What
makes Snapchat different from every other photo sharing application?
Snapchat is unique because once a photo or video, referred to as a
“snap,” is sent to someone, the recipient only has ten seconds to view
the snap before it disappears forever, without giving the recipient the
opportunity to save or forward it. 14 “The app is designed to capture a
moment and share it in an impermanent way, like speech.”15
Snapchat is fairly easy to use and there are two ways in which to
connect to other Snapchat users. First, a fellow Snapchat user can be
searched by their Snapchat username; this username is one in which
the individual can create without tracing back to his actual identity. 16
The second way to connect is by allowing the app to match the contacts
in one’s address book or Facebook account with the users in its data-
base.17 After taking a picture or video, a pencil in the right-hand corner
enables a user to draw on the image, and tapping the lower portion of
the screen itself allows the addition of text.18 The timer at the bottom
left corner of the screen is the feature that sets Snapchat apart from
other applications. A user has the option of determining how long the
recipient can view the snap, ranging from one to ten seconds.19
Although saving is not an option for the recipient, the sender of the
Snapchat can opt to save the picture or video to her device prior to send-
ing it.20 Snapchat also tracks to whom each user messages frequently,
and publicly displays the top three in a category titled “best friends.” 21
The founders of the application describe Snapchat as “a digital version
of passing notes in class.”22 Although Spiegel claims the app to be

13. Kashmir Hill, Evan Spiegel & Bobby Murphy, FORBES,

http://www.forbes.com/special-report/2013/disruptors/evan-spiegel_bobby-murphy.html
(last visited May 25, 2014).
14. Joseph Hanlon, What is Snapchat?, WHISTLE OUT (July 29, 2013),
http://www.whistleout.com/CellPhones/Guides/what-is-snapchat.
15. Id.
16. Alyson Shontell & Megan Rose Dickey, 60 Million Photos are Disappearing on
Snapchat, a $70 Million App by Stanford Frat Brothers, BUS. INSIDER (Feb. 9, 2013),
http://www.businessinsider.com/how-to-use-snapchat-2013-2?op=1.
17. Id.
18. Id.
19. Id.
20. Id.
21. Katie Notopoluos, The Snapchat Feature that will Ruin Your Life , BUZZFEED
(Dec. 5, 2012), http://www.buzzfeed.com/katienotopoulos/the-snapchat-feature-that-will-
ruin-your-life (discussing that a user’s public web profile shows the user’s top three most
messaged friends and a user’s profile is publicly viewable by searching the user’s name).
22. Shontell & Dickey, supra note 16.
832 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

“wholesome” and encourages its use by the whole family, what it is ac-
tually often used for is far from family matters. 23 The promise of instant
deletion has led today’s youth to using the application for “sexting” pur-
poses.24
On its face, the exchange of risqué photos may seem harmless, but
it has recently led to both violent and unlawful acts. 25 The use of this
popular application has even led to a recent celebrity arrest. 26 A recent
study shows that eighty percent of snaps are sent during the day, with
a spike during school hours; this revelation has led many to believe that
young users are using the app to cheat on school exams. 27
Before parents begin searching through their children’s phones to
delete the app, it is important to understand that Snapchat is not just
an application with the potential of bringing one’s life into a downward
spiral. Snapchat provides a personal connection with its audience that
has led many companies to use the app as a marketing tool. 28
A popular yogurt chain with over fifty stores used the application to

23. Barbara E. Hernandez, Snapchat isn’t about Teen Sexting, Founder Says, NBC
BAY AREA (Sept. 12, 2013), http://www.nbcbayarea.com/blogs/press-here/Snapchat-Isnt-
About-Just-Sexting-223076021.html.
24. Nicole A. Poltash, Snapchat and Sexting: A Snapshot of Bearing Your Bare Es-
sentials, 19 RICH. J.L. & TECH. 14, 21 (2013) (discussing a website that Snapchat is used
for sexting and the website used to include pictures sent by women via Snapchat but has
since been removed).
25. Helen A.S. Popkin, Bloody Teen Fight over Sexting Won’t Help Snapchat’s Repu-
tation, NBC NEWS (Sept. 16, 2013), http://www.nbcnews.com/technology/bloody-teen-fight-
over-sexts-wont-help-snapchats-reputation-8C11167242 (describing a physical fight that
broke out between two adolescent males at a convenience store when the one teenager
found out that the other male had sent explicit snaps to his younger sister).
26. At the conclusion of his first hearing, Jason Miller was arrested with respect to
a domestic violence case he had in Southern California. The victim revealed to the court a
Snapchat video that Miller had sent to her of him saying “I love you.” The victim waited
until the hearing to open the actual Snapchat so that the district attorney could attest to
the accuracy of the video. Due to the provisions of Millers’ protective order, any communi-
cation between him and the victim were strictly prohibited. The Orange County Sherriff’s
Department took Miller into custody, and the judge held that Miller was in violation of
the protective order. While the district attorney requested a $15,000 bond amount, Judge
Manssourian made an example out of Miller and ordered the bail to be set at $200,000.
Brandon Stroud, Mayhem Miller’s Latest Arrest Happened over Snapchat, UPROXX (Sept.
12, 2013), http://www.uproxx.com/sports/2013/09/mayhem-millers-latest-arrest-happened-
snapchat/.
27. Jordan Crook, Inside Snapchat, The Little Photo-Sharing App that Launched a
Sexting Scare, TECHCRUNCH (Dec. 26, 2012), http://techcrunch.com/2012/12/26/inside-
snapchat-the-little-photo-sharing-app-that-launched-a-sexting-scare/.
28. Andrew Solmssem, Marketing with Snapchat: It’s not Just for the Kids, CLICKZ
(Jan. 31, 2013), http://www.clickz.com/clickz/column/2240363/marketing-with-snapchat-
its-not-just-for-the-kids.
2014] SNAPCHAT VIOLATES FTC REGULATIONS 833

send coupons to any customers who added their user account through
the application.29 Through Snapchat, fashion designer Rebecca Minkoff
released a preview of her latest fashion line prior to its debut on the
New York Fashion Week runways.30 Taco Bell even announced a new
item via their Snapchat account.31 However, the problem does not lie in
the marketing use of the app, it lies in the daily use by average con-
sumers. In less than two years, Snapchat has become an $860 million
company and is continuously growing, causing it to reach a wide range
of users every day.32
Recently, Snapchat introduced a new feature with a little more
permanence called “Stories.”33 A Snapchat Story is a rolling compila-
tion of snaps from the last twenty-four hours that an individual’s Snap-
chat friends can see.34 “Stories fundamentally alters the nature of
Snapchat, in three ways: messages now can live for up to twenty-four
hours, rather than for ten seconds; they can be viewed repeatedly with-
in that window, instead of just once; and they create within Snapchat

29. In January 2013, the yogurt chain 16 Handles conducted a Snapchat promotion
for its customers. Participating customers were asked to send the 16 Handles Snapchat
account a snap of their yogurt purchase. In return, the company would send the customer
a coupon through Snapchat, which had to be opened in the presence of the yogurt shop’s
personnel. The coupons had a discount that ranged from fifteen percent to 100 percent of
any purchase in the store. “The snap acted like a scratch-off ticket and held the twin ben-
efits of immediacy and surprise.” Id.
30. Erin Griffith, Previewing a Runway Show via Snapchat is Kinda Brilliant,
PANDO DAILY (Sept. 6, 2013), http://pandodaily.com/2013/09/06/previewing-a-runway-
show-via-snapchat-is-kinda-brilliant/ (Rebecca Minkoff has strayed from the norms of the
fashion industry, which prides itself on keeping its collections a secret until the actual
release (usually at a fashion show). She has given recipients an insight on her latest col-
lection with a 10-second glimpse of her new looks. Typically designers only give buyers,
the press, and industry influences first access to new collections.) Id.
31. Id.
32. J.J Colao, In Less than Two Years, Snapchat is an $860 Million Company,
FORBES (June 24, 2013), http://www.forbes.com/sites/jjcolao/2013/06/24/snapchat-raises-
60-million-from-ivp-at-800-million-valuation/.
33. Matt Buchanan, The Long Snap, NEW YORKER (Oct. 14, 2013),
http://www.newyorker.com/online/blogs/elements/2013/10/the-long-snap.html.
34. Id. Snapchat consists of four different screens that a user has the ability to
swipe through. “Starting with the left-most screen, they are arranged in this order: your
inbox, the camera, your friends list, and a panel to add friends.” Id. “Stories lives in the
same space as your friends list; while a new section at the top displays the most recent
updates, you generally have to scroll through your friends to hunt down every single sto-
ry.” By holding down the clip that an individual has designated as a story, users have ac-
cess to view the compilation for a twenty-four hour time period. Snapchat users have the
option of having their stories being viewed by only their Snapchat friends, or anyone with
an account. Id.
834 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

what is effectively a stream of content and a semi-public persona.”35

Luckily, the Stories feature is optional and users are still able to send
time-designated snaps to specified individuals. 36 With millions of snaps
being exchanged daily, it has become increasingly important for Snap-
chat to ensure that its application is not in violation of any FTC regula-
tions.37

B. FEDERAL TRADE COMMISSION

The FTC was created in 1914 and is an independent agency within

the executive branch.38 The FTC is responsible for fair competition
among companies throughout the nation. 39 The FTC’s mission is “to
prevent business practices that are anticompetitive or deceptive or un-
fair to consumers; to enhance informed consumer choice and public un-
derstanding of the competitive process; and to accomplish this without
unduly burdening legitimate business activity.” 40 The FTC is controlled
by five Commissioners, nominated by the President and confirmed by
Congress; each Commissioner serves a term of seven years. 41
Within the FTC is the Bureau of Consumer Protection whose duty
is to protect against unfair, deceptive, or false business practices in the
marketplace.42 This bureau makes sure that companies are abiding by
laws in relation to advertising, fair financial and lending practices,
telemarketing, the privacy of individuals’ personal information, and

35. Matt Buchanan discusses the new Snapchat feature as follows:

Stories can be published (if one allows) so that they’re completely exposed to any-
one on Snapchat, creating a de facto public profile. These profiles mutate every
twenty-four hours, so that a static, digital profile never accumulates; every day
on Snapchat, you effectively become a new person, which Spiegel believes is true
in real life as well. But having a public profile, even an amorphous one, turns the
insularity of Snapchat inside out. What had been a place to exclusively share the
photos you deemed too weird or unattractive or disposable to plaster on Insta-
gram or Facebook for a small eternity is now implicitly asking users to create
public content for it, too. By going public, Snapchat risks no longer being the
place for the private. Id.
36 . Id.
37. Id.
38. About the FTC, FED. TRADE COMM., http://www.ftc.gov/about-ftc (last visited
May 31, 2014).
39. Our History, FED. TRADE COMM., http://www.ftc.gov/about-ftc/our-history (last
visited May 31, 2014).
40. Id.
41. Commissioners, FED. TRADE COMM., http://www.ftc.gov/about-ftc/commissioners
(last visited May 31, 2014).
42. What We Do, FED. TRADE COMM., http://www.ftc.gov/about-ftc/what-we-do (last
visited May 31, 2014).
2014] SNAPCHAT VIOLATES FTC REGULATIONS 835

fraud.43 More specifically, the Federal Trade Commission Act prohibits

unfair and deceptive acts and practices, and authorizes the FTC to ad-
minister the Act’s prohibitions.44
A trade practice is unfair if it “causes or is likely to cause substan-
tial injury to consumers which is not reasonably avoidable by consum-
ers themselves and not outweighed by countervailing benefits to con-
sumers or to competition.”45 In addition, an act or practice is deceptive if
it “involves a representation, omission, or practice that is likely to mis-
lead the consumer acting reasonably under the circumstances, to the
consumer’s detriment.”46
There are three elements in the aforementioned deception test: (i)
a practice likely to mislead the consumer; (ii) Reasonableness from the
perspective of the mislead group; and (iii) the practice must be materi-
al.47 The first element in this three-prong deception test is that there
must be a representation, omission, or practice that is likely to mislead
the consumer.48 One is not required to prove that the act or practice ac-
tually misled the consumer, but that it is likely to mislead the consum-
er.49 Second, the FTC will consider claims or omissions material if they
significantly involve health, safety, or other areas with which a reason-
able consumer would be concerned.50 In determining this second ele-
ment, the FTC will ask questions such as: “How clear is the representa-
tion? How conspicuous is any qualifying information? How important is
the omitted information? Do other sources for the omitted information
exist? How familiar is the public with the product or service?” 51 The
third element of deception is materiality. 52 The representation, omis-
sion, or practice is considered material if it is one which is likely to af-
fect a consumer’s choice of or conduct regarding a product. 53 Typically
the question asked in this instance is “whether consumers would have

43. Id.
44. 15 U.S.C. § 45 (2010).
45. Complaint at 4, In re Snapchat, Inc. (F.T.C. May 16, 2013), available at
http://epic.org/privacy/ftc/EPIC-Snapchat-Complaint.pdf [hereinafter In re Snapchat
Complaint].
46. Id. at 5.
47. Id.
48. Id.
49. Id. at 5-6.
50. FTC Policy Statement on Deception, FED. TRADE COMM. (Oct. 14, 1983), availa-
ble at http://www.ftc.gov/bcp/policystmt/ad-decept.htm.
51. In re Snapchat Complaint, supra note 45, at 6.
52. FTC Policy Statement on Deception, FED. TRADE COMM.,
http://www.ftc.gov/bcp/policystmt/ad-decept.htm (last visited May 10, 2014).
53. The Representation, Omission, or Practice Must be Material, FED. TRADE COMM.,
836 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

chosen another product if the deception had not occurred.” 54

From business owners to teenage girls, Snapchat is attracting more
and more users daily. But do users really know what they are signing
up for when they download this application? Can they honestly say that
they know exactly where their photos and videos are going after press-
ing send? The following section will analyze the shortcomings of the
Snapchat application that most users are unaware of and ultimately
present a legal proposal for its creators.

III. ANALYSIS
First, this analysis will address the internal defects of the Snapchat
application, and then discuss a possible way for users to extract data
from the application. After a discussion of Snapchat’s shortcomings, the
potential issues that arise due to Snapchat’s privacy policy and its vio-
lations of FTC regulations will be discussed.

A. THINK AGAIN BEFORE YOU HIT SEND

A “screen shot” is the action of capturing the present image on your

computer desktop, cell phone, or tablet and saving it as a static image
file.55 In other words, a screen shot is a way of taking a picture of your
computer screen or other electronic device.56 Many mobile devices and
tablets currently have screen capture capabilities built into the actual
device.57 This is one of the major hurdles Snapchat faces in providing
users with an application that performs to the extent promised. If one
opens the photo in Snapchat before it expires while keeping a finger on
the screen, one can easily take a screen shot of the image. 58 If the recip-
ient attempts to take a screenshot, the app will alert the sender;

54. Id.
55. Sue Chastain, What is a Screen Shot, ABOUT.COM,
http://graphicssoft.about.com/od/glossary/f/screenshot.htm (last visited May 10, 2014).
Screenshots are helpful in situations where it may be difficult to articulate in words
something you are trying to explain. In software reviews, a screenshot can be used to dis-
play what the software actually looks like. In tutorials, it can help illustrate how to per-
form a function. In technical suppose troubleshooting a screenshot will display the actual
error message or software issue that a consumer might be presented with. Screenshots
are also helpful if there is something displayed on your computer screen that you want a
copy of but are unable to print right away. Id.
56. Id.
57. Id.
58. Jesus Diaz, How to Easily Capture Images in Snapchat without the Other Person
Noticing, GIZMODO (Jan. 22, 2013), http://gizmodo.com/5978053/how-to-easily-capture-
images-in-snapchat-without-the-other-person-noticing.
2014] SNAPCHAT VIOLATES FTC REGULATIONS 837

however, there is nothing designed in the application that prevents a

user from taking screen shots of the images she receives. 59 In addition,
the individual can use a separate device to take a photo of her screen.60
Besides screenshots, Snapchat creators have met another hurdle—
other mobile applications. Recently a significant number of mobile ap-
plications have been created and designed to save photos received
through Snapchat.61 A new app, Snap Save, not only makes saving
Snapchat photos and videos easier than ever, it also saves the snaps
without letting the sender know.62 After downloading the Snap Save
app and logging into a Snapchat account, Snap Save allows a user to
see all the snaps he has previously received.63 Though these expired
snaps cannot be reopened and viewed, any new incoming snaps will be
kept in Snap Save for repeated viewing.64
Soon after Snap Save was created, another application by the name
of SnapHack was released.65 Similar to Snap Save, SnapHack saves
photos and videos without alerting the sender.66 Any time a user re-
ceives a notification of an incoming snap, he simply has to open the
SnapHack app and refresh it to retrieve the pictures and/or videos. 67 He
can then open each snap individually and tell the app to save the file
onto his device.68 Neither Snap Save nor SnacpHack have any affilia-
tion with Snapchat.69 When asked about the new apps, Snapchat

59. Id.
60. Adrian Covert, Snapchat Automatically Sets Your Sexts to Self-Destruct in 10
Seconds or Less, GIZMODO (May 7, 2012), http://gizmodo.com/5908200/snapchat-
automatically-sets-your-sexts-to-self+destruct-in-10-seconds-for-less (discussing that
someone may take a picture of his screen using another device).
61. Drew Guarini, ‘Snap Save,’ New iPhoneApp, Lets You Save Snapchats—Without
Letting The Sender Know, HUFFINGTON POST (Aug. 9, 2013),
http://www.huffingtonpost.com/2013/08/09/snapchat-snap-save_n_3732477.html (Snap
Save removes any ads that appear in Snapchat but requires a user to log in and out of
each app in order to use the apps simultaneously).
62. Id.
63. Id.
64. Id.
65. Salvador Rodriguez, SnapHack App Lets Users Save Snapchat Photos without
Notifying Sender, L.A. TIMES (Oct. 14, 2013),
http://www.latimes.com/business/technology/la-fi-tn-snapchat-snaphack-save-photos-2013
1014,0,7662933.story.
66. Id.
67. Snapchat refuses to discuss SnapHack because it is not affiliated with the new
application. When a Snapchat user receives a new snap, the user must open it in
SnapHack in order to save the snap on his device. Once opened in Snapchat, the snap
cannot be opened again in SnapHack. Id.
68. Id.
69. Id.
838 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

declined to comment.70
While some users may appreciate the fact that SnapHack lets them
quickly and easily save snaps, others may not be too pleased that their
snaps may be saved without their knowledge or consent. 71 Because
snaps are believed to vanish within a matter of seconds, most individu-
als use the app to send silly or embarrassing pictures that they would
not normally post on other social networks.72 These new apps, such as
Snap Save and SnapHack, are especially off-putting to those who use
Snapchat to send particularly lewd content.73
As if users were not already skeptical of the ability to screen shot,
and subsequent applications created to save images, they certainly were
not expecting the news that the Snapchat application itself does not ac-
tually delete their images.74 Decipher Forensics, a Utah-based data re-
search center, recently announced that it found a way to recover Snap-
chats media and has begun offering its services to the public for
monetary compensation.75 Not only is this technique legitimate, but it is
also provided on video.76
With respect to Android phones, the majority of Snapchat data is
stored within the data/data/com.snapchat.android folder, which con-
tains four folders.77 Examination revealed that within one of the shared
folders are several XML files linked to Snapchat. 78 This file is where the

70. Id.
71. Id.
72. Id.
73. Id.
74. Molly McHugh, Yes, You Can Recover Dead Snapchats and Here’s the Video
Proof, DIGITAL TRENDS (May 19, 2013), http://www.digitaltrends.com/social-media/yes-
you-can-recover-dead-snapchats-and-heres-the-video-proof/#ixzz2iPgE5Ydy (“Unfortu-
nately, as users become more savvy, ephemeral technologies like Snapchat will have to
take more measures to make sure that curious consumers with a little know-how can re-
cover this type of content.”). Young teens should be cautious when sending explicit mes-
sages to each other via Snapchat, because the recipients may save and republish the me-
dia. Id.
75. Id.
76. Id.
77. Snapchat Unveiled: An Examination of Snapchat on Android Devices, DECIPHER
FORENSICS (Apr. 30, 2013), http://decipherforensics.com/blog-landing-page (evidenced by
the app’s home screen, the time stamps for the snaps, new or expired, are stored some-
where on the device).
78. In order to examine what was left behind on devices by Snapchat, they used two
Android devices and created two different Snapchat accounts (rhickman1989 and Deci-
phForensics). Id. The pictures and videos were sent from rhickman1989 (on a Samsung
Galaxy Note 2) to DeciphForensics (on a Samsung Galaxy S3). Subsequently, decipforen-
sics2 was created on the Samsung Galaxy Note 2 in order to send more pictures and vide-
os to the second device. “This was to determine if there are identifiers for the sender ac-
2014] SNAPCHAT VIOLATES FTC REGULATIONS 839

majority of information stored by Snapchat is located, and within it is a

listing of all the contacts stored on the device.79 Below the list of con-
tacts is a listing of Snapchat messages. 80 There is a set of fields stored
for each message in Snapchat and there are also fields stored in this
section of the XML file such as: snaps that been viewed, snaps that are
still loading, and snaps that have been screenshot. 81 The re-
ceived_image_snaps folder contains every image sent to the Snapchat
account on the Android phone, including the images that had been
viewed and were expired.82 There are some duplicate images with dif-
ferent names as well, but the reason for this is still unknown. 83
“Android developers created a way for media files such as graphics
to be stored on the phone for application use and function without being
put into the Gallery application as an image to be viewed.”84 This was
done using .nomedia files, essentially if a directory has a file named
.nomedia, then the media store will not scan and record the metadata of
files in that directory.85 “Each of the images within the re-
ceived_image_snaps folder has a .nomedia extension appended to the
end of the file name.”86 Researchers predict that this was likely done to
prevent the images stored within this directory from being placed in the
gallery or from being scanned by the media store. 87 AccessData’s Foren-
sic Toolkit recognized the .nomedia extension that was attached to the
end of the file name and ignored it, displaying the actual images in-
stead.88 This research was conducted in an attempt to answer several
vital questions about the Snapchat application as it is stored and used
on Android devices.89 The researchers concluded that metadata is stored

count of a ‘snap,’ and the same acquisition process was followed again after the second
batch of ‘snaps’ were sent.” Id.
79. Id. “Examination revealed that within the shared prefs folder are several XML
files: CameraPreviewActivity.xml, com.google.android.gcm.xml, com.snapchat.android_
preferences.xml, and SnapPreviewActivity.xml.” Id.
80. Id.
81. Id. (“There is a set of fields stored for each message in Snapchat and the follow-
ing are the fields stored in this section of the XML file: type, mSender, mWasViewed,
mCaptionPosition, mCaptionOrientation, mIsLoading, mIsTimerRunning, mIsBe-
ingViewed, MWasOpened, mWasScreenshotted, mDisplayTime, mId, mTimestamp,
mStatus, mIcon, and mMediaType.”).
82. Id.
83. Id.
84. Id.
85. Id.
86. Id.
87. Id.
88. Id.
89. “The author has concluded that metadata is stored for Snapchat images, as
840 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

for Snapchat images, as shown by the com.snapchat.android-

_preferences.xml file, and that it contains metadata about expired
snaps, as well as unexpired snaps, and that images that are sent via
Snapchat are indeed recoverable, and do not “disappear forever.”90
If iPhone users thought they were off the hook, they thought wrong.
By using iFile, a program that is more or less an iPhone file and folder
browser, one can look into the applications folder and discover the fold-
er serving as home to expired Snapchats. 91 While searching through the
directories, investigators were able to find .MOV files which turned out
to be videos sent through Snapchat that had since expired.92 There are
also files named “filtered” and “output,” which are videos recorded on
the local iPhone to be sent on Snapchat. 93 Those files seem to only be
the most recent video recorded and will stay “sent” or “not sent” and
will be overwritten as soon as another video is recorded.94 The research-
er using the iPhone claims that he did not do any of this to “defame”
Snapchat and he was only motivated by user security and privacy con-
cerns.95
Recently, iPhone users have discovered an additional way to cap-
ture these disappearing images, and Buzzfeed declares the process as
being quite simple.96 One must take the iPhone, plug it into his comput-
er, and use a third-party file-browsing app like iFunBox to navigate its
file system, heading straight for the Snapchat/tmp folder.97 From there,
one is able to re-watch all videos, copy them to his computer, and unlike
taking a screenshot, the Snapchat user who sent the video will not be
notified of the privacy intrusion.98 “While the trick is a lot of work to go
to for each and every video, it’s an obvious way to incriminate those who
send the most inappropriate content.” 99 “Perhaps more importantly,
though, the fact the videos are stored locally after they’re viewed in

shown by the com.snapchat.android_preferences.xml file, and that it contains metadata

about expired “snaps” as well as unexpired “snaps,” and that images that are sent via
Snapchat are indeed recoverable, and do not “disappear forever.”
90. Id.
91. McHugh, supra note 74.
92. Id.
93. Id.
94. Id.
95. Id.
96. Jamie Condliffe, How You Can Save Snapchat Videos Forever after You’ve
Watched Them, GIZMODO (Dec. 28, 2012), http://gizmodo.com/5971689/how-you-can-save-
snapchat-videos-forever-after-youve-watched-them.
97. Id.
98. Id.
99. Id.
2014] SNAPCHAT VIOLATES FTC REGULATIONS 841

Snapchat clearly runs counter to the whole point of the app.”100 Snap-
chat co-founder Evan Spiegel told BuzzFeed, “people who most enjoy us-
ing Snapchat are those who embrace the spirit and intent of the service.
There will always be ways to reverse engineer technology products—but
that spoils the fun!”101 However, many users’ definition of “fun” is hav-
ing the ability to hold on to these snaps that senders believe are disap-
pearing.
“The photos take about six hours to extract (mostly time spent im-
aging the data) from a folder that the .NOMEDIA images are stored in
called RECEIVED_IMAGES_SNAPS.”102 Once the images are extract-
ed, the file extension can be changed and the images are made viewable
once more.103 The firm who discovered this is currently charging be-
tween $300 and $500 to forensically dig up hidden photos for interested
parties, in addition to working with law enforcement and lawyers. 104
With this newfound ability to extract Snapchat data from both Android
and iPhones, it has become evident that Snapchat needs to adjust its
privacy policy.

B. SNAPCHAT’S PRIVACY POLICY

A privacy policy is a document that explains how an organization

handles any customer, client or employee information gathered in its
operations.105 While Snapchat’s privacy policy is quite short and
straightforward, it is also very discouraging.106 Snapchat does not

100. Id.
101. Id.
102. DL Clade, Forensics Firm Discovers that Snapchat Photos don’t Disappear After
All, PETA PIXEL (May 10, 2013), http://petapixel.com/2013/05/10/forensics-firm-discovers-
that-snapchat-photos-dont-disappear-after-all/.
103. Id.
104. Id.
105. Privacy Policy, WHATIS, http://whatis.techtarget.com/definition/privacy-policy
(last visited May 25, 2013) (discussing that typically, websites will allow visitors access to
the company’s privacy policy). “A privacy page should specify any personally identifiable
information that is gathered, such as name, address and credit card number, as well as
other things like order history, browsing habits, uploads and downloads.” Id. Most policies
will also disclose if data may be left on a user’s computer, and whether data may be
shared with or sold to third parties and for what purpose. Id.
106. Andrew Counts, Terms and Conditions: Snapchat’s Privacy Policy has Too Many
Secrets, DIGITAL TRENDS (Dec. 16, 2012), http://www.digitaltrends.com/mobile/terms-
conditions-snapchat/#ixzz2iPvufGl9 (describing Snapchat’s policy, which provides that all
users of the application agree to not hold the company accountable for any negative occur-
rence that may arise out of using the app). For example, a user may not sue Snapchat if
any photo sent via Snapchat ends up posted on the Internet. If a user is able to find a
cause of action against Snapchat, its policy includes a “limitation of liability” clause that
842 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

display a plethora of rules to follow, but it does list a few. 107 “Namely,
don’t mess with the app in any technical way; don’t share copyrighted
content; don’t use it to spam or harass anyone; and get permission to
use it if you’re under the age of 13” (a stipulation that is explained in
the privacy policy, not the terms of service, where it usually appears). 108
Snapchat’s policy states, “We take reasonable measures to help pro-
tect information about you from loss, theft, misuse and unauthorized
access, disclosure, alteration and destruction.” 109 It also states, “Once
all recipients have viewed a Snap, our system is designed to automati-
cally delete it from our servers. Opened Snaps typically cannot be re-
trieved from Snapchat’s servers by anyone, for any reason. Unopened
Snaps are deleted after 30 days. If you feel that a crime has been com-
mitted, we encourage you to contact your local law enforcement.”110
Snapchat’s “collection of information: information you provide to us”
provision reads as follows:
When you send or receive Snaps, we also temporarily collect, process
and store the contents of the Snaps (such as photos, videos and/or cap-
tions) on our servers. The contents of Snaps are also temporarily
stored on the devices of recipients. Once all recipients have viewed a
Snap, we automatically delete the Snap from our servers and the
Snapchat mobile application is programmed to delete the Snap from
the recipients’ devices. We cannot guarantee that deletion always oc-
curs within a particular timeframe. We also cannot prevent others
from making copies of your Snaps (e.g., by taking a screenshot). If we
are able to detect that the recipient has captured a screenshot of a
Snap that you send, we will attempt to notify you. In addition, as for
any other digital information, there may be ways to access Snaps
while still in temporary storage on recipients’ devices or, forensically,
even after they are deleted. You should not use Snapchat to send mes-
sages if you want to be certain that the recipient cannot keep a copy.111
While Snapchat’s policy has identified that snaps are stored on re-
cipients’ devices, it fails to provide even a general timeframe as to when
the snap will actually be “deleted.” Additionally, the policy does not go
into any detail as to how snaps can be extracted from devices. The lan-
guage of the policy also denotes that Snapchat is not always able to de-
tect screenshots. Moreover, although the application claims to take

caps damages at $1.00. However, some states do not allow limitations on liability. Id.
107. Id.
108. Id.
109. Privacy Policy, SNAPCHAT, http://www.snapchat.com/privacy/ (last visited May
25, 2014).
110. Id.
111. Id.
2014] SNAPCHAT VIOLATES FTC REGULATIONS 843

reasonable measures to help protect users’ information, it does not go

into detail as to the measures in which it is willing to provide.
“With all the risks associated with the application’s improper use,
Snapchat has added limited liability and indemnification clauses.” 112 Its
limitation of liability states that the company will not be held liable for
any damages resulting from “the conduct of other users of the applica-
tion, even if Snapchat has been advised of the possibility of such dam-
ages.”113 An individual assumes total responsibility for his use of the
application.114 Overall, while the application has addressed some of the
relevant issues, its internal flaws and privacy policy are still deceptive
to the average consumer. This leads to the discussion of how Snap-
chat’s privacy policy violates FTC regulations.

C. FEDERAL TRADE COMMISSION COMPLIANCE

The Electronic Privacy Information Center filed a complaint alleg-

ing that Snapchat’s representations to users “that photos sent using its
app would be deleted after a user-designated amount of time” are “like-
ly to mislead the reasonable consumer” and that those representations
are material.115 In addition to asking the FTC to investigate Snapchat’s
claims that users’ images are permanently deleted, the complaint asks
that the FTC require Snapchat to make improvements to its security
practices to successfully delete users’ photos and to cure any deceptive
statements about its services.116
Section 5 of the Federal Trade Commission Act prohibits unfair and
deceptive acts and practices, and empowers the Commission to enforce
the Act’s prohibitions.117 A trade practice is unfair if it “causes or is like-
ly to cause substantial injury to consumers which is not reasonably
available by consumers themselves and not outweighed by countervail-
ing benefits to consumers or to competition.” 118 There are three ele-
ments that describe the level of injury to be proven. 119 The first is that
the injury must be substantial. This typically involves monetary harm
but can also include unwarranted health and safety risk; emotional

112. Poltash, supra note 24, at 33.

113. Id.
114. Id.
115. Amie Medley & Roberta Horton, Complaint to FTC: Snapchat’s Vanishing Im-
ages are not Really Vanished, SELLER BEWARE (June 16, 2013),
http://www.consumeradvertisinglawblog.com/2013/week25/.
116. Id.
117. In re Snapchat Complaint, supra note 45, at 4.
118. Id.
119. Id.
844 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

harm and other subjective types generally do not make a practice

unfair.120 Second, the injury must not be outweighed by an offsetting
consumer or competitive benefit that the sales practice also produces. 121
Finally, the injury must be one which consumers could not reasonably
have avoided.122
With respect to Section 5, an act or practice is deceptive when it in-
volves a representation, omission, or practice that is likely to mislead
the consumer acting reasonably under the circumstances to the con-
sumer’s detriment.123 There are three elements involved: (i) a represen-
tation, omission or practice likely to mislead the consumer; (ii) the act
or practice must be considered from the perspective of a reasonable con-
sumer; and (iii) the representation, omission, or practice must be mate-
rial.124

D. SNAPCHAT’S VIOLATIONS

Snapchat has violated Section 5 of the Federal Trade Commission

Act in many regards.125 Among all apps for the iOS operating system,
Snapchat has the fifth highest number of users, impacting millions of
consumers.126 Snapchat’s practices are unfair because they are likely to
cause substantial injury to consumers, and are not reasonably avoidable
by consumers themselves. Any user of the application that sends media
and believes it cannot be retrieved is most likely sending media they
wish to not be viewed again. Furthermore, any injury caused by the use
of this application is not outweighed by countervailing benefits to con-
sumers or to any competitors.
Not only is the application unfair, but its program and privacy poli-
cy are both deceptive.127 Snapchat has represented and omitted crucial
information that would likely mislead any consumer using the applica-
tion. First, Snapchat has represented to its users that photos sent using
the app will be deleted after the designated amount of time. 128 With re-
spect to this feature, the app fails to actually delete the user photo data.
This representation is very likely to mislead the reasonable user of the

120. Id.
121. Id. at 5.
122. Id.
123. Id.
124. Id.
125. Id. (alleging that the application has misled consumers into believing that any
media sent via Snapchat would disappear from the device after the recipient viewed it).
126. Id. at 2.
127. Id.
128. Id. at 4.
2014] SNAPCHAT VIOLATES FTC REGULATIONS 845

application, and is more likely than not the sole purpose of the
individual downloading the app. False representations regarding the
deletion of user photos are in fact material, and a consumer’s choice of
use and conduct is very likely to be affected by this material fact. The
application has omitted the distinct ways in which both opened and un-
opened photos can be extracted from devices. These misrepresentations
and omissions need not actually mislead an actual consumer, but rather
they must be likely to mislead.129
When looking at how important the omitted information is, the
FTC is likely to conclude that Snapchat’s failure to provide its users
with the clear methods in which snaps can be retrieved is material. In
addition, the public’s unfamiliarity with the new application also plays
a major role in the deceptive practices. The FTC presumes that an
omission is material where “the seller knew, or should have known, that
an ordinary consumer would need omitted information to evaluate the
product or service, or that the claim was false, because the manufacture
intended the information or omission to have an effect.” 130 If consumers
were privy to this information prior to downloading the application,
they may have thought twice before engaging in its use. What can
Snapchat do to retain its users, protect itself, and properly inform con-
sumers? From a legal standpoint, Snapchat can start by altering its
privacy policy.

E. THE TRUTH WILL SET YOU FREE

The proposed new approach to Snapchat’s privacy policy is quite

simple—Snapchat needs to provide users with the truth about what the
app can and cannot do. The creators need to look at the application from
the prospective of an average user and not that of an expert. The im-
proved policy needs to distinguish between viewable and retrievable
media. While the countdown feature prohibits a user from “viewing” the
photo or video after the elapsed time (with the exception of the screen-
shot method), it does not prohibit the media from being retrieved
through other means. This is a distinction that needs to be addressed
early on in the policy.
After the discrepancy is discussed, the application creators should
briefly explore the different methods in which exchanged data can be
extracted from the app. First, the application needs to reveal that the
photos sent will not in fact be deleted after the designated amount of
time, and provide a general time frame as to how long the media exists

129. Id. at 5.
130. Id. at 6.
846 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

on a user’s device, as well as on the Snapchat servers. Snapchat should

also describe the way in which photographs and videos are saved to the
device using a .MOV attachment. Overall, the application must identify
all the ways in which photos can be retrieved (from screenshots to ex-
tracting photos from a computer).
While it is acknowledged that an application like Snapchat may re-
cruit a technological team to modify the program ensuring data deletion
after a designated time that is not the motivation of this Comment. The
concentration of this Comment focuses on the legal aspect of what can
be done and the contractual obligation that a web application makes
with its users. Even if Snapchat were to modify its program to actually
delete data, there are still numerous ways that snap recipients can sal-
vage photos that they obtain through the app as previously discussed in
this Comment.131 Even if modifications of the application are made,
there are still issues that mobile applications simply cannot avoid,
which is why their focus should be on informing users of the potential
harms.

F. SNAPCHAT FOR DUMMIES

Not only should Snapchat disclose its shortcomings in its privacy

policy, but it should also do so in a manner that is easily comprehensi-
ble. Snapchat needs to reform its privacy policy by understanding its
target audience. The majority of its users are in high school and college.
Snapchat must maintain its notion of providing a condensed policy,
while still making sure it hits all major issues. The text of the policy
should be clear enough so that the average user will understand its
terms.
In addition, Snapchat needs to ensure that it gives proper notice to
its users at any time that it makes any alterations to its policies.
Whenever a change to the policy is made, a notification should be sent
through the application. When a user opens the Snapchat application, a
pop-up screen should launch which then notifies the user that the policy
has changed, and bullet pointing the pertinent areas of change. This
notification should present the user with a “learn more” option in the
event that the user chooses to read the details of the revisions. Reitera-
tion is key; therefore, once the policy is changed (no matter how minor)
the notification should launch at least three times. Although the aver-
age user of the application may not fully comprehend the intricacies of
the technological functions, it is better that he is fully informed rather

131. This Comment has addressed ways in which users can retrieve snaps such as
taking screen shots or photographing data using alternative devices.
2014] SNAPCHAT VIOLATES FTC REGULATIONS 847

than only partially informed. In the alternative, Snapchat should use

its technological abilities to ensure that the photos and videos are
actually deleted within a timely manner.
This proposal works by putting the Snapchat user on some sort of
notice, not once, but three times. This is crucial because in most circum-
stances an individual is not able to sue against terms that she has con-
tractually agreed to. The repetitive nature of the notification will hope-
fully at some point gain enough attention for users to at least skim the
policy adjustments. In the alternative, at least the user will have
viewed a bulleted list of the relevant areas of the policy that have been
modified. There is the possibility of individuals opting not to read the
policy each of the three times they receive this notification. However,
we are in a technological era, and there is only so much that can be
done to inform users.
This proposal also works by protecting Snapchat from further in-
vestigations. For instance, according to Snapchat’s policy, if law en-
forcement officials have a search warrant to see specific unopened
snaps, the service is required by the federal Electronic Communications
Privacy Act to hand them over.132 Since May 2013, Snapchat has given
approximately a dozen snaps to the authorities. 133 Recently this has
begun to raise numerous legal and privacy issues, but luckily Snapchat
warned users in its policy from the beginning of its launch.134
Furthermore, an application user needs to be more cognizant of
what he is downloading to his devices. The FTC provides an “Under-
standing Mobile Apps” brochure for consumers that covers such im-
portant topics as how apps are paid for, what information they may
gather from a device, or who gets that information” 135 Consumers can-
not rely solely on the Apple and Android application stores to provide
them with the necessary privacy information and protection they seek.
One of the central underlying public policy issues at hand is con-
sumer protection. The FTC's Bureau of Consumer Protection works for
the benefit of the consumer to prevent fraud, deception, and unfair
business practices in the marketplace.136 Government officials want to

132. Dara Kerr, Snapchat’s Unopened ‘Snaps’ Can be Seized by the Police, CNET (Oct.
14, 2013), http://news.cnet.com/8301-1023_3-57607495-93/snapchats-unopened-snaps-can-
be-seized-by-the-police/; see 18 U.S.C. § 2510.
133. Kerr, supra note 132.
134. Id. (describing that “Stories” is available for up to twenty-four hours and will
remain on Snapchat servers for the duration of this time). “According to Schaffer, these
snaps within Stories are subject to the same legal requirements at unopened snaps.” Id.
135. Understanding Mobile Apps, FED. TRADE COMM. (Sept. 2011),
http://www.consumer.ftc.gov/articles/0018-understanding-mobile-apps.
136. Bureau of Consumer Protection, FED. TRADE COMM., http://www.ftc.gov/bcp/
848 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX

ensure consumer confidence by enforcing federal laws to protect

them.137 The Bureau empowers consumers with free information to
help them exercise their rights and spot and avoid fraud and decep-
tion.138
If users feel slighted by Snapchat, they simply will not use the app
anymore. This can have a more negative effect on the economy than one
might think. Deceptive practices by applications like Snapchat will
leave consumers weary of other applications and technological advanc-
es. Consumers like mobile applications apps because they are often free
or available at a very low cost. When applications sell advertising space
in the app, they can offer the app for a lower cost than if it did not have
advertisements.139 However, if consumers stop using apps as often as
they do now, advertisers will seek other ways to promote their busi-
nesses. A decrease in advertisements within apps can lead to the rise of
application prices. In the event that mobile application companies like
Snapchat take responsibility and provide more straightforward and in-
clusive policies, it eventually may become a norm in the industry. Over
time, these norms may transform into laws requiring all mobile applica-
tions to disclose all pertinent information to its users in a reader-
friendly format. The ability for individuals to interact online without
sacrificing their personal privacy is a vital part of the Internet’s value,
and is intimately related to its trustworthiness. 140 It is important for
companies like Snapchat to be forthcoming with its users and let the
users decide if the application is suitable for them or not.

IV. CONCLUSION
As users, we buy into the idea of privacy online or with social apps,
but at the end of the day, it may seem as though we have no control
over our data.141 Even Snapchat, an application that boasts the ability
to delete photos and videos forever, has not actually provided this fea-
ture. The Snapchat app makes many users feel comfortable to send pho-
tos that they believe will be deleted after just a few seconds. 142

(last visited May 25, 2014).

137. Id.
138. Id.
139. Understanding Mobile Apps, supra note 135.
140. Privacy & Identity, INTERNET SOC’Y, http://www.internetsociety.org/what-we-
do/internet-technology-matters/privacy-identity (last visited May 25, 2014).
141. Ashley T. Powell, Shorter Privacy Policies win-win for all, DAILY WILDCAT (Oct.
28, 2013), http://www.wildcat.arizona.edu/article/2013/10/shorter-privacy-policies-win-
win-for-both-users-companies.
142. Id.
2014] SNAPCHAT VIOLATES FTC REGULATIONS 849

Social media companies like Snapchat should provide users with con-
densed privacy policies so that individuals do not feel fooled and the
companies do not lose users.143
Privacy policies need to be condensed so users will actually read the
policies and know the truth behind whatever service they are about to
use. “Very few people have the patience to actually read 5,000 word
privacy policies and later feel betrayed by these services, which could
cause a decline in the number of users.”144 Snapchat’s current privacy
policy is approximately 1,800 words, Instagram’s policy is roughly more
than 2,000 words and Facebook’s policy is more than 5,000 words. 145
Snapchat needs to not only retain its condensed policy, it needs to bet-
ter inform its users of the risks of using the application.
This Comment has presented that Snapchat has violated Section 5
of the Federal Trade Commission Act, which prohibits unfair and de-
ceptive trade practices.146 The internal defects of the application as well
as its privacy policy shortcomings are addressed. While the possibility
of a more technological solution is briefly presented, this Comment fo-
cuses on the legal remedy to the issue at hand. Proposed herein is a pri-
vacy policy revision that includes repetitive notifications to the consum-
er. This not only puts the user of the application on notice, but it does so
on multiple occasions. Additionally, this Comment has addressed steps
that consumers ought to take in a world of growing technological ad-
vances. Technology makes the world a better place. It has provided a
unique platform for innovation, creativity, and economic opportunity 147
Technology has improved the quality of life for people in all parts of the
world—and can continue to do so.148
Snapchat CEO Evan Spiegel claims that his company’s most im-
portant value is empathy.149 When asked to give an example of a prod-
uct designed without empathy, Spiegel immediately named Google
Glass, claiming that it works in the world that Google has constructed
for itself, but that in the real world it makes most people uncomforta-
ble.150 The question for Snapchat, as it grows beyond 350 million snaps
a day, is who is it going to feel empathy for?151

143. Id.
144. Id.
145. Id.
146. In re Snapchat Complaint, supra note 45, at 4-5.
147. Privacy & Identity, supra note 140.
148. Id.
149. Buchanan, supra note 33.
150. Id.
151. Id.
850 J. INFORMATION TECHNOLOGY & PRIVACY LAW [Vol. XXX