Legality of subsequent use of recorded information

Naive Acquisition of Dual-use Surveillance Technology (Part #7)

Third party role: As noted in the commentaries above, Samsung has modified the wording of its privacy policy -- despite complaining that its original intentions had been misinterpreted. It has progressively become clearer that the verbal information captured via the Smart TV is passed to a third party, now more widely known to be Nuance Communications (Nuance Brings Voice to Samsung Smart TV Line Up, 9 May 2012). Headquartered in the USA, the corporation specializes in speech recognition and imaging applications. The company is claimed to be responsible for Samsung's "voice recognition". Less clear, as implied above, is whether Nuance also records information derived from a Smart TV, irrespective of whether it is obliged to process it in real time. Also less evident is what happens to the visual recordings in the case of the camera-enabled variant of the Smart TV.

The wording of the Samsung policy now reads:

You can control your SmartTV, and use many of its features, with voice commands. If you enable Voice Recognition, you can interact with your Smart TV using your voice. To provide you the Voice Recognition feature, some voice commands may be transmitted (along with information about your device, including device identifiers) to a third-party service that converts speech to text or to the extent necessary to provide the Voice Recognition features to you. In addition, Samsung may collect and your device may capture voice commands and associated texts so that we can provide you with Voice Recognition features and evaluate and improve the features. Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data captured and transmitted to a third party through your use of Voice Recognition.

Legal proof of deactivation? The point is made that users can of course disable these features by turning off voice recognition in the settings menu, but it appears that the third party contextual data collection cannot be disabled without losing the handy voice recognition service altogether. Again, whatever modification is made in the settings menu, there is no concrete proof that information is not being passed on to a third party anyway. This is a situation which has become familiar in the operation of personal computers and in ensuring constraints on such undeclared communications.

No concrete proof is supplied (or can be), making it extremely difficult to avoid suspicions of any form of dubious exploitation of information derived from users -- in this case from their living room use of a Smart TV, or from their bedrooms for that matter.

Undeclared involvement of other parties: Especially interesting is whether Nuance (or any other undeclared "third party") is then free to engage with other parties under commercial contracts -- or is obliged to do so under security legislation (as is typical of Homeland Security provisions in the USA). Clearly any verbal or other declarations in this regard are as credible as those which have been variously made by US-based computer and software manufacturers over the past few years -- only to be reframed when found to be less than credible in the light of emerging evidence. Denials of vulnerability to hackers have been feeble, without any provision for legal proceedings against vendors of such technology.

Would a fourth or fifth party on the information distribution chain hesitate in the face of the opportunity of using bedrooms scenes -- if an income stream could be ensured from such a source?

In his comment, Chris Matyszczy (Samsung changes Smart TV privacy policy in wake of spying fears, CNET, 10 February 2015) notes:

However professional Nuance Communications is (and it works with many companies such as LG and Panasonic to, for example, turn speech into text), there is always going to be a little doubt. There's certainly a question as to what happens once Samsung has passed your data to Nuance.

Nuance's privacy policy says, for example: "By using Nuance products and services, you acknowledge, consent and agree that Nuance may collect, process, and use the information that you provide to us and that such information shall only be used by Nuance or third parties acting under the direction of Nuance, pursuant to confidentiality agreements, to develop, tune, enhance, and improve Nuance services and products". Further in the privacy policy is a reference to data use for "advertising and marketing."

I have contacted Nuance to ask whether it feels able to pass voice data information -- in whatever form -- obtained via Samsung Smart TVs to third parties.

Future legal requirements: Irrespective of current concerns, also of relevance are the possible developments of the smart technologies and the requirements for their use. These may include the future legal requirement to have an "enabled" TV or smartphone -- with penalties for failure in this respect. A striking case in Germany has been the arrest of German sociologists, notably triggered by failure to bring their mobile phones to meetings -- interpreted, as with encryption of emails, as an indication that the meetings were of a suspicious nature from the perspective of the intelligence community (Richard Sennett and Saskia Sassen, The War on Shapeless Terror, The Guardian, 20 August 2007).

Clearly there are possibilities that some future personal insurance claims will not be honoured if the claimant fails to be able to prove use of a smartphone at the time. A similar situation may emerge with respect to medical claims under circumstances governed by social security legislation. Lobbies for the relevant technologies have a clear interest in promoting such legislation -- to whatever degree they may be complicit with the dubious requirements of the intelligence services.

Intellectual copyright: Also of interest is the possible evolution of intellectual copyright in relation to information collected by smart devices. Whose property -- in legal terms -- is the data passed by a Smart TV to Nuance? To what extent does conversation in front of a TV -- and disseminated to others -- constitute "publication", potentially subject to copyright? In other settings, as with respect to a conference speech, release forms are a common requirement before the content can be disseminated onwards. Does the Smart TV small print in fact constitute such a release?

Should concerned users be exploring the possibility of class action suits against such vendors for misuse of data beyond the provisions of the small print? Should users consider the need to face vendors with a legally binding non-disclosure agreement, prior to purchasing the technology -- especially for corporate boardrooms? On the other hand, use of a Smart TV to display movies and music (inappropriately downloaded and shared) could presumably be tracked via Nuance -- suggesting a major income stream in relation to those endeavouring to recover such lost income.

Copyright governing recorded imagery: The legal issues are all the more interesting with respect to recorded imagery. especially the cases in which a Smart TV is used in the presentation of business and strategic plans -- spreadsheets, diagrams, blueprints, and the like. Such devices are presumably widely used in boardrooms as a means of displaying reports and presentations from personal computers. How is such information processed by Nuance, especially given its expertise in biometric facial recognition for security purposes?

Could this be understood as an extension of processes of commercial espionage -- readily framed as in defence of the competitive advantage of the USA, and therefore of its national security? Will this result in the systematic identification and profiling of participants in strategic meetings -- as it may well do following installation of a Smart TV in the bedroom? Nuance may then seek to extend its databases of biometric data to include images of other portions of users' anatomy.

Security and intelligence implications: In relation to intelligence and security concerns, if the evolution of technology and legislation is to be understood as forming an integral part of the US need for Total Information Awareness (and full spectrum dominance), should the design and implementation of smart devices -- such as the Samsung TV -- be seen as part of a curious form of systematic enclosure of private space? Another variant of the tragedy of the commons? As with personal computers more generally, should such devices and their associated applications simply be understood as "front ends" for a high-tech variant of the military-industrial complex?

Much has been reported on the keywords in email and blogs which are tracked by the intelligence services in seeking to determine "persons of interest". Given the warning of Samsung regarding personal conversations within the hearing of a Smart TV, is it evident what keywords might trigger response from clients to whom Nuance may transfer such information? Of particular interest is whether Nuance will be able to correlate use of derogatory keywords to viewing by users of declarations of a given politician -- articulating the policies of the USA for example. As part of extending program rankings for commercial purposes, in the light of channel choice by users, will such indications be used to enrich the sociopolitical risk profile of users -- for the benefit of the intelligence services?

There will of course be no concrete proof as to whether these possibilities are in place or envisaged. The past denials by CEOs regarding backdoor features are an indication of the pattern to be expected.

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Legality of subsequent use of recorded information