Is that a slap in the FaceApp for privacy?

I don’t understand the fascination with FaceApp.

Every morning when I look in the mirror I see an old man looking back at me. So I have no great desire to accelerate that process by using an App which digitally transforms photographs to represent how people may look as they get older. Not to mention the serious concerns that have recently been raised over the App’s privacy compliance which (if you believe the hype) the FBI is in the process of investigating due to Russian interference.

As many of you will know, the App uses artificial intelligence to transform your likeness (via uploaded photo) into an older version of yourself. The App has gone viral over recent weeks and we’ve all had a glimpse of how gracefully (or ungracefully) our friends will age. No doubt the real interest for most people is to see the unknown and the prediction of what may lie ahead.

The App has made clear that it is Russian owned. Perhaps on that basis and given the concerns raised over the influence exerted during the US elections, Senators have this week written to the FBI and asked them to investigate whether “national security and privacy concerns [exist] for millions of US citizens”. Specifically, Senator Chuck Schumer asked whether “personal information uploaded by millions of Americans onto FaceApp may be finding its way into the hands of the Russian Government”.

One of the rumours which has been circulating is that the App could more widely access data on the user’s device and, for example, access previous images stored on their camera rolls. However many data privacy experts have since weighed in on the debate and said that there isn’t any evidence the App is doing that.

Others commented that the App processes data in the cloud rather than locally on the user’s device and that the data wasn’t automatically deleted promptly after accessing the App, as FaceApp ‘might’ store the photos which users have uploaded to the could for a period of time. Whilst those things on their own don’t indicate that the data is any less secure, the sentiment expressed by some users is that it made them feel less at ease about using the App.

The key, of course, is to understand what you are agreeing to in signing up to and using the App. Most social media platforms have well defined terms of use (yes – I can hear you groaning at the thought of having to read them) which set out what they can and can’t do with your data. Where those terms are offered on a ‘take it or leave it’ basis (as most are), they are subject to the unfair contracts requirements of the Australian Consumer Law, as well as the Privacy Act obligations mentioned earlier.

Key takeaways for business owners

The same concepts apply for any business which operates in an online or digital environment. It is essential for those businesses to continually be reviewing their terms to ensure that they remain up to date and compliant with changes in legislation. As the pace of technology continues to evolve, so does the legal framework and it is important to regularly review that and to consider it in light of your engagement with customers, suppliers and even App providers or users.

It will not be a defence to say that you had your terms prepared by lawyers two or three years ago. That is too long to go without review and they will likely be out of date and non-compliant if they haven’t been reviewed for that long.

Key takeaways for digital consumers

On the flipside, as a consumer, it’s important that you take time to understand what you are downloading, and how you can manage privacy risks. As terms must be more balanced (not unfair) they often provide a guide to managing risks. For example, you might choose to change your settings by turning off most of those which providers use to collect data, delete any Apps or data which you are no longer using or configure services to operate only when you are using the App.

When I was recently in China I encountered facial recognition technology of another kind. The image below shows a facial recognition toilet paper dispenser which is installed in a number of bathroom facilities. To receive an allocation, users must stand in front of the machine and allow it to capture your image. Not sure what the Government is going to do with that Data!

Happy travels and may you all age gracefully.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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