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Social media users a-twitter regarding possible breach of privacy
By Sarah Sidlow

There’s the bell.

Facebook Inc. just lost the first round of what will likely be a lengthy courtroom battle against users over—shockingly (not)—privacy rights.

Let’s TimeHop back to where it all began. In 2010, Facebook introduced technology that allows users to identify people they recognize in photos. A user uploads a photo, and Facebook suggests likely users to tag. The tech uses something called “biometric data”—computer data created using indicators like similarity scores, identification data, fingerprints and faceprints. That’s a word.

So what’s the beef? Well, three states—Illinois, Texas and Connecticut—have laws that regulate the use of biometrics and facial recognition technology. In Illinois, companies can be sued for failing to first acquire consumer consent to use such technology.

Flash forward past the birthdays, anniversaries and foodporn to 2015, when Adam Pezen, Carlo Licata and Nimesh Patel, all of the Chicago area, separately sued Facebook Inc. for just that.

The lawsuits, which have now been combined into one civil suit, accuses the social media giant of having “secretly amassed the world’s largest privately held database of consumer biometric data.” (Side note: Google has also been sued for roughly the same thing.)

Facebook, which is headquartered in California, pushed back and asked the case to be thrown out, citing that all-powerful small print, which requires disputes to be resolved under the laws of California, where there is no such biometric regulation law. They also said users could opt out at any time.

U.S. District Judge James Donato in San Francisco was not impressed with that logic, and said “Illinois will suffer a complete negation of its biometric privacy protections for its citizens if California Law is applied.”

Ding Ding. Round 1, over.

With the trial now poised to begin, questions about privacy and social media will fly once again.

So, can social media users have an expectation of privacy when posting their photos online?

For many, the answer is yes. Supporters like Pam Dixon, executive director of the World Privacy Forum in San Diego, says the ruling is a big win for consumers who assume they’re protected by their own state laws, regardless of where the national company is located. Moreover, Facebook, and other sites like it, have heard users’ demands for increased privacy and security functions, and have taken lots of steps to make that happen. Because not providing what the consumer wants is ultimately bad for business.

Yet, there are others who say that just isn’t the case. Many Facebook users do so at their own risk, understanding that whatever they post, in whatever fashion, is not only likely to be seen by unintended audiences, but also probably saved on a server for the rest of eternity, to be accessed by the company, the government, alien beings or whomever. In fact, the way people interact with Facebook has changed to echo this sentiment. In April, The Information reported a 21 percent decline in “original sharing,” or personal updates, from Facebook’s 1.6 billion monthly active users.

Reach Dayton City Paper freelance writer Sarah Sidlow at SarahSidlow@DaytonCityPaper.com

Facial recognition software ‘Unfriended’

By Tim Walker

Pri-va-cy (n) – 1. The state or condition of being free from being observed or disturbed by other people. 2. The state of being free from public attention.

“I want to be left alone,” Greta Garbo once said, famously, and I am forced to agree. All human beings share a fundamental right to privacy. The idea that we are free to live our lives without being watched, tracked or monitored, that we are free to write down our ideas or converse with our friends without someone listening in, that our lives are somehow our own, is a cornerstone of many constitutions and governments. It is one of the basic principles behind the concept of a just society in this modern era.

That need to protect our privacy—the need to be left alone—didn’t end with Garbo’s death in 1990. Famous American recluses such as the writers J.D. Salinger and Thomas Pynchon, famed Calvin and Hobbes comic strip creator Bill Watterson, even billionaire Howard Hughes, have all made headlines through the years and excited journalists with their desire to …well, to stay out of the headlines. Pynchon, it should be noted, who is as famous for never being interviewed or photographed as he is for writing award-winning works of literature, successfully avoided reporters and photographers for four decades … until, in 1996, New York Magazine—using computer databases—found him living a quiet, normal life in Manhattan with his wife and young son.

But the idea of privacy—at least the sort of privacy our founding fathers had in mind when they created our beloved Constitution—is perhaps rooted in the distant past. Had you mentioned to Thomas Jefferson that one day a man would be forced to pee into a cup in order to earn employment, he would have been appalled at this infringement on our basic rights. No one in the 1700s could have envisioned a time when all of our financial transactions would be monitored by the federal government, our daily comings and goings recorded by ubiquitous “security cameras,” our conversations recorded and dissected by the NSA. When George Orwell wanted to illustrate how far society had devolved in his novel “1984,” he took away all of Winston Smith’s privacy. The government of Oceania knew what Smith was doing at all times—Big Brother, as he found out, was (and is) watching all the time

Orwell be damned. Have we reached a point where we are now all too eager to willingly hand our privacy over to our corporate masters, in the name of socializing? Facebook, the most popular social media service on the planet, had an estimated 1.65 billion active users as of the first quarter of 2016—approximately 22 percent of all the people on Earth. And Facebook is storing your biometric data—your face, in other words, your likeness, along with your “likes,” “dislikes” and favorite books and restaurants. One of the features Facebook introduced to its users in 2011 was facial recognition software which suggested potential “tags” for posted photos. In other words, as 99 percent of you probably already know, when you post a photo of your spouse on Facebook, the service’s facial recognition programs suggest a potential identity for that person, making it easier for you to “tag” them with their correct name.

This service, in my opinion, is nothing more or less than an infringement on our fundamental right to privacy. Facebook insists that users have the option of opting out of the service, but having an online Big Brother watching over your shoulder all the time while you post photos is uncomfortable and, in a few states, illegal. Maybe I don’t want my biometric data stored away in some cloud somewhere. Perhaps I don’t want to be “tagged” in every single photo of my face that might appear online. Maybe I prefer, God forbid, to stay a bit more anonymous when I’m online.

The use of online facial recognition software has not been without its share of problems: In 2015, Google Photos hastened to apologize when the corporation discovered that its recognition application was identifying African-American users as gorillas. And it’s not like facial recognition software isn’t already in use in numerous security applications worldwide; for example, department stores utilize the data they collect to try and identify potential shoplifters. The TSA and Homeland Security use the technology to try and identify potential terrorists.

With the passing of the Patriot Act, signed into law by President George W. Bush in 2001, we Americans saw what had been a gradual erosion of our basic rights gain even more ground. One cannot, it seems, make a move outside our homes without having every minute or our daily lives intruded upon by cameras, recording devices and software, all in the name of keeping us “safe” from terrorism. Cyberspace—going online, surfing the internet, keeping up with our friends and family through cell phones and tablets, may ironically be the last space we have where we can be anonymous and nameless. Is it too much to ask for Facebook to keep its corporate hands off my face?

Tim Walker is 50 and a writer, DJ and local musician. He lives with his wife and their two children in Dayton, where he enjoys pizza, jazz and black t-shirts. Reach DCP freelance writer Tim Walker at TimWalker@DaytonCityPaper.com.

Love it or leave it

By Brad Sarchet

Online privacy, again?  When are people who use the internet going to recognize the clever thieves and hackers that find nearly anything on the internet to be easy pickings? In addition to the poor, unsuspecting regular folks who are constant victims of fraud, Ashley Madison, Anthem and the U.S. military are among the big-name businesses that have been criminally hacked. The kicker this time is that the accused are neither known hackers nor thieves, but are rather legitimate companies—Facebook in this case, with Google also in the crosshairs. In this privacy issue the companies are not being charged with “stealing” anything, but with manipulating user entered data in ways that may be illegal in some states. Facebook is being charged with storing photos and data entered by their users (I’m not sure why anyone would think they were doing otherwise), and also using biometric data gleaned from those photos and other user-entered data.

Or so goes this debate, and as it’s described in the Debate Center, I find two separate and important issues. One is the privacy matter with Facebook manipulating data entered voluntarily on their site, but the other more interesting and troubling issue relates to how state laws are legitimately applied to people who live, and companies that are physically located, in other states.

The first issue harkens back to an article I wrote in which the phrase “reasonable expectation of privacy” was key. The privacy issue is once again a central theme, but the very important difference in this debate is from whom people are trying to keep their information private. In most internet privacy issues, users are concerned with keeping their information out of the hands of illegal hackers. In this case, however, users are not worried about being hacked, but rather in maintaining privacy from a website/company to which they very willingly providing their own private photos, personal information, resumes, etc. Many users of Facebook seem clueless regarding just how much personal information they post on the internet. Users expect Facebook to store and keep virtually all of this very important information for other Facebookers to access.  Isn’t that the entire purpose of Facebook? So then how do those same users claim that their privacy has been violated because Facebook is storing and using the very data you are asking them to store and use? Facebook is designed to store personal information for other users to access…but then users are suing Facebook because it stores (and uses) that information? Isn’t this mentioned somewhere in the fine print? I would guess it’s mentioned somewhere, but who really takes the time to read the entirety of the agree to the terms fine print?  So my final comment on this topic is: If you decided to post anything on the internet, don’t be so naive as to think that the only people who view, store, manipulate, etc., what you post are your “selected users.” Anyone and everyone can see almost anything on the internet with just a very little bit of ingenuity.

The most important issue I see here is a legal issue regarding how the laws of one state can be applied to people in another state. My case is this: State Alpha and state Beta have a few laws that differ. Some acts that are legal in state Alpha are illegal in state Beta, and vice versa. Many actual laws can be used as examples here: gambling, driving 70 mph on the highway, helmet requirements for motorcycle riders, etc. So in my case a particular act is completely legal in state Alpha, but completely illegal in Beta. Therefore, any citizen of the U.S. can come to Alpha and partake in this act legally with no repercussions. Even citizens from Beta can come to Alpha and partake with no problem. But any act of this sort in state Beta, even by an Alpha resident, is illegal and a jailable offense.

So, how many examples can you make that fit this scenario? In Vermont, anyone of appropriate age can legally carry a canceled firearm without a permit of any sort. Not true in Ohio. So, if I’m an Ohio resident, I can legally carry a concealed weapon in Vermont with no permit, but if I do the same thing in Ohio, I’ll likely serve time. Likewise, Ohio residents can legally buy and smoke just about as much marijuana as they like while visiting in Colorado, but they certainly cannot legally do the same back in Ohio.

Back to our Facebook issue. Using biometric data is not illegal in California, but is illegal in Illinois. Facebook is based in California—it produces a product and distributes it legally from California. So if someone from Illinois travels to California and uses Facebook, no harm no foul.  But if that Illinois resident returns home and decides to use Facebook, which he knows is illegal in Illinois, then who should get charged? Clearly it should not be producers of the product, who did so legally based on their own state laws. It’s the users in Illinois who are legally suspect.

Thus, with a curious twist of logic, one interesting conclusion seems to be that the only individuals who are known to have acted illegally are the three who started the initial lawsuit. In registering their initial suit against Facebook, Adam Pezen, Carlo Licata and Nimesh Patel, from Chicago, must have necessarily used Facebook, which is a company that violates Illinois state law.

Brad Sarchet, Ph.D., has advanced degrees in philosophy and physiology and is currently a biology professor at a local university. He is interested in the philosophy of science and animal physiology. He’s also an old hippy and Dead Head. Reach him at BradSarchet@DaytonCityPaper.com.

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Reach DCP editor Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

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