2013 Privacy Rights Are So Last Year

January 11, 2013

English: The monk Samten who came to Samye Lin... English: The Tibetan monk Samten who came to Samye Ling with Sherab Palden Beru around 1967. (Photo credit: Wikipedia)

This blog post is the third of a four-part series on the Hotel California Scenario for future social, local and mobile media, apps, platforms, and solutions (SOLOMO). In the first post, I likened lyrics from The Eagles Hotel California to a future SOLOMO scenario where the User is the Interface, The World is the Computer, and the Situation is the Network. The second post suggested that it will be increasingly possible to do an “end-around” your smartphone passcode lock to access the sophisticated, powerful and user-friendly data mining that play a central role in the highly personalized experience we are coming to expect. This third post explores legalities and practicalities of privacy rights, emerging use cases, and possible outcomes. I am not an attorney, nor consider myself an expert on digital privacy, but I can read the tea leaves on where we are headed.

Can Anyone Keep Up with Privacy TOS?

The companies creating what I am calling the Hotel California future want to provide you with offerings that you will pay for because they improve lives and business performance. There will be other less obvious costs as well, highlighted ahead.

New SOLOMO product introduction is rampant and adoption is rapid. Generally, this indicates that no one wants to be labeled a Luddite, and expectations are high that new technology delivers advantages. In this type of insatiable market setting, who has time to read every line of a Terms of Service (TOS) document, or to recheck boxes every time privacy rules change?

In the last post, I covered how data mining will be done regardless of passwords and passcodes. NetFlix just succeeded in changing a law to allow sharing of your viewing history on social media. This means, figuratively for now, that your television can watch and report on you, and most people do not even own connected TV’s yet.  There appears to be some sort of after the fact opt-in clause that is unclear to me, however, it must be renewed every 2 years.  Is the renewal of your privacy rights on everything from robocalls to social media platforms to television to perhaps offline shopping eavesdropping really going to be programmed into everyone’s to do lists?

Moreover, if you download an app that you only use once and then shelve with the other 100 apps, don’t be surprised if the TOS you agreed to when downloading the app allows continued data mining and/or rights to your data.  Repeatedly forgoing these rights, whether through the TOS or expiration of opt-ins, is a cost of your new free service or inexpensive app.

The free and freemium service platforms and apps that are so helpful to us can also require approving lengthy CYA terms of service so protective that you’d need a team of lawyers to distinguish the egregious from the simply liberal. Of course, a quick policy change can turn what is the simply liberal today into the egregious tomorrow.  At some point, regressive analytics turned into predictive analytics and that will soon give way to persuasive analytics – how do we get you to buy a product you would not ordinarily try, or go somewhere you would not ordinarily go?  This has been a core goal of any marketing for decades, but the manners in which it will be done are changing rapidly. For example, which friends can we enlist, knowingly or otherwise, to persuade you using new forms of digital multi-level marketing? Does anyone really think that last month’s Instagram policy over-reach on their rights to market using your photos will never be repeated by another friendly startup with an innocuous cartoon logo? Changing policies that affect how others view you are another cost of using free platforms.

Today’s Evolving Models of SOLOMO Data Capture

In my Hotel California example, whether you check in or not, you can always be found. As the song says, “we are programmed to receive”.  If you refrain from uploading your pictures to the web, your family, friends and coworkers, industry colleagues or even hotel security will eventually do so for you. Your face can be tagged and cross-referenced at any time. You do have a drivers’ license don’t you?  Losing control of your data’s distribution is a cost of the new bias toward sharing information.

Instagram is a Facebook company, and much has been written about Facebook’s privacy practices, image tagging and facial recognition. Facebook bought an Israeli facial recognition company in 2012.  Facebook’s facial photo tagging was so prominent in recent European inquiries on the subject that it promised to remove the feature that suggests that others tag you. In the US, anyone can still tag you.

Not to pick solely on Facebook, TechCrunch reports that Apple was recently granted a facial recognition patent that allows them to ID you by face, even as you age, and share data with social networks or media such as music for sale.  The patent focuses on identifying celebrities, landmarks and iconic images via content residing not only on your Apple offerings but anywhere in the cloud. It would probably take a team of attorneys to decipher the grey areas around how any patent is worded, who is considered a celebrity, and what privacy rights one gives up as a celebrity.  TechCrunch notes that the patent “is about making the smartphone smarter”. This is true today, especially with the advent of augmented reality, but as this series of posts predicts, the opportunities are far greater than just a consumer’s smartphone, and new mass monetization models will emerge. One also has to consider how enabling consumers to identify via smartphones may enable unintended use case scenarios like the one cited later in this post.

Startups are also homing in on markets created by facial recognition. The Boston Globe reported that SceneTap is an app that allows you to monitor average age, gender and size of crowds in restaurant/bars to help you choose where to go. They place 2 cameras near the bar entrance, and bars do not alert patrons they are being tracked because the facial identification tunes out your exact image in favor of general identifying features. However, they have applied for patents to cover the ability to cross-reference your image in real time with social databases to determine your occupation and income, and also your criminal history.  Another US startup, Redpepper, is targeting the same market space under the brand Facedeals.  Facedeals is built using the Facebook graph API and offers tailored rewards to those who adopt the app and are facially recognized.  I believe that this is the tip of the iceberg, and there will be considerably more like these 2 startups.

I should mention that there are valid business reasons for such apps. Patrons will be happier if they go to a “scene” that meets their expectations, and SceneTap offers restaurants the analytics on patrons.  Perhaps in the future, a Wall Street analyst will want access to discovery of patronage analytics of a public, or soon to be public, retailer in order to discern trends and help make a call on the stock.

Digital Trends reports that, like with SceneTap, Benetton’s embedded mannequin cameras in the US and Europe track you without your knowledge. Using the EyeSee product from Almax, it identifies not only your gender and age, but also your race.  While the product still does not identify you uniquely, a voice recorder is being developed to eavesdrop on your in-store conversations as well. Again, in the end, this is being done to provide the shopper with better in-store recommendations and provide the retailer with better analytics to improve the customer experience.

Tobii eye tracking promises “to analyze vision, human behavior, user experiences and consumer responses” per their website.  This data will be used to infer a consumer’s preferences from metrics related to their gaze: how and where their eye focuses.  I have often focused on an object while thinking of something completely different. You have to put your eyes somewhere, right?  The product’s inferences about my interests, however, would still be placed in my database as part of my preferences.  This is another cost of the highly personalized SOLOMO future.

When people think of mobility today, they think of smartphones and tablets. All of these examples, and more, are rapidly leading us toward a de-emphasis on the smartphone in your pocket and purse or the tablet as the lynchpin of the future of consumer mobility. We still need to go through the connected television stage, and the build-out of the Hotel California scenario’s enabling infrastructure. So, it is not to say that present day mobile devices will disappear anytime soon, but the introduction of new gadgets, sensors, cameras, interactive digital signage and business models in the environment around us will radically change the game. In my view, 2013 will be a pioneering year for much of this change. Venture investors will soon shift their own gaze to new apps, platforms and solutions that focus on the environment.  In many cases, they may interact with your smartphone, but like the song says, you (and your data) will will not be prisoner on your own device.

Is Legal, Right, and Will It Matter?

Privacy advocates and legal scholars much better informed than I can debate the right to privacy versus the expectation of privacy.  You can read how there is no privacy expectation for your face or voice or presence in most public spaces. If this is correct, these are the legal grounds on which this new world rests. It is probable that a statute oriented toward the privacy of your face, voice or other physical aspects while in public is old enough that it did not take into consideration the Hotel California scenario.  While I should limit any statement to the US, capitalism, people and the web have a way of spreading what is created in the Valley to the rest of the world pretty quickly, so it won’t matter. I have to wonder if this “expectation of privacy” canard won’t someday affect the data privacy of the businesses that are lobbying for liberalization as well. You can read the FTC’s recently released best practices guidelines (not law) on facial recognition here.

Beyond the US and Europe, Baidu in China is testing a system and Ecuador is implementing the world’s first national facial recognition system.  If Europe does become the gold standard for privacy, I foresee a future opportunity for a company to offer US consumers a foreign PO Box style residency, ala Bermudian tax avoiders, in order to be treated under European rules. I am by no means an international legal privacy expert, so I am unsure if EU rules would apply to someone when they are apparently visiting the US, or if in the future, proof of citizenship would be needed.  I see this as a niche service, because if it appears this service is significantly adopted, plans and lobbying for the work-arounds will commence.

Identifying you via facial biometrics and determining your interests via gaze tracking may be legal, but is it right?  Will infringing on your previously misguided expectation of privacy now put your security at risk? What if an unauthorized person uses an app that might have been marketed for dating or networking purposes, or exploits a platform company’s API, to identify you?

Here is a scenario that I hope we never encounter:

Imagine that the local cat burglar snaps your photo as you enter a restaurant in Poughkeepsie.  He immediately ID’s you, perhaps in a smartphone augmented reality sort of way.  He reviews your social media and figures out from your place of work and your title that you make over 7 figures. Then he derives your address via an old resume, public mortgage data or the metadata on photos of last month’s anniversary party. He might even recognize your car outside in the lot, and you might find your tire flat upon leaving.  Thanks to your face, the law, social databases and facial recognition / location apps he now knows you have wealth, you live on 49th Street, you are not home and you will be at the restaurant for at least the next 90 minutes. What are the chances he burgles your cat before you’ve ordered dessert? This can also be one of the costs of free services, personalization and mobility.

Influencing the Future of SOLOMO

In this post, I covered some of the less apparent costs that might be associated with the benefits we will enjoy in a Hotel California SOLOMO future. The purpose of this Identification (R)evolution is not nefarious in a 1984 way. It will provide real benefits and convenience to billions as well as help businesses market their offerings to you. I intend to participate in helping make the new SOLOMO world happen in whatever small way I can. Still, one should ponder what we all might be giving up in the way of security, privacy and rights in order to enjoy these new benefits. At a time when US legislation is not catching up with technology, it is increasingly contingent upon every SOLOMO industry professional to temper their zeal for what is possible and legal with what they, their clients, partners, and their colleagues feel is right. It wouldn’t hurt to query your end-users too.

The fourth and final post of this series will list representative companies enabling the Hotel California SOLOMO future where the User is the Interface, The World is the Computer, and the Situation is the Network. From startups to Fortune 500, they will embed cameras everywhere, test commercial waters with facial recognition, track your gaze, define more about the environment around you at any time, and locate you in places you could not be tracked before unless you were a parolee with an ankle bracelet.

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