Austin Technology Law Blog

In Your Face, Privacy!

I'm lazy. That's the only answer I can come up with. There are coupon, discount, and "my awesome deal" websites cluttering my inbox every morning, and for the life of me I can't seem to remember or care enough to take advantage of all this free money. I'm not a technophobe - far from it. I've used Google deals, Facebook deals, aDealio, and Groupon when I'm getting a massage, sometimes a car wash, or when I'm all out of ideas for lunch. But with all the deals out there part of me has given up and decided it's easier to pay the extra 15% rather than wade through all those sites.


Enter my savings savior, Red Pepper and their new facial recognition software, Facedeals. Facedeals, proposes to assist with my Facebook check-ins by performing a facial recognition match by way of their fancy, magic camera box. Through this facial sorcery, I'm automatically checked in and then I'm sent a text with the available deals. Fantastic! Right?!


With the exception of the two weeks of SXSW, I can never muster the strength of summoning Foursquare or Facebook to let my friends know where I am or what deals might be around the corner. Finally, I can end the torture that is unlocking my iphone, finding the check-in app, finding the right location, and thinking of something witty to say ... then doing it all over again with my deal app. Yes, this type of laziness falls under the first world problem category, but the thing is, that's probably what it's going to take for me to actually redeem that coupon for 10% off all fish taco appetizers (on every 3rd Tuesday). 


My first thought as an attorney was ... hurry up and change your name before Facebook sues you! See other Facebook victims here, here, and here. Fortunately, they recently posted a statement indicating no affiliation with Facebook and that they are changing their product's name. Well done, Red Pepper, well done. I hope that's enough golden fleece to cover the dragon's eyes. 


My next thought was  ... isn't there some type of privacy concern here? There's a video camera outside of each bar checking me in? What exactly is that little wizard camera box doing? As I would expect, Facedeals states that it is opt in procedure, meaning permission must be granted before Facedeals blabs about you going into a bar at an inappropriate time and/or with inappropriate frequency. Anyone who has signed up for Spotify can attest to the difficulty in broadcasting their listening habits to their friend circle. 


So are they violating our privacy? Ultimately, the Constitution and case law provide us with our basis for privacy law, but each state maintains privacy statutes that fine tune the proper interactions with those rights. For example, think of recording conversations, state laws differ on whether both parties to a recorded conversation must be aware of the recording. Therefore, an overgeneralization is difficult, but the "dangerously close to malpractice" take on this is that if you don't have an expectation of privacy then there is no privacy. When you're in public walking on a public street you can't expect that information to be protected by law, as opposed to being in your house with the shades drawn or in private establishment whispering to your friend.


The Facedeals program doesn't seem to record sound and faces the street, so it appears to coincide with the legal expectation of privacy, but how will people react?  My thought would be that the reaction will be predicated on what the program does and how it is used.  The basic premise is great and handy, but will this start the slippery slope to a continued monitoring of our actions? What if someone hacks into the system like some Ocean's 14 plot? I watched the Wire, don't we already have cameras on every block? 


Although I'm a bigger fan of privacy than I am a cheap steak bite, I could see myself using the app when walking around a new area ... as long as I can edit my notifications to "Only Me". The lazy guy who wants help checking in is interested to see how well the facial recognition software works and the lawyer in me wants to find out what the program is doing once it scans my face (even if I haven't signed up). 



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