Facebook's challenge to the Collection Limitation Principle
An extract from our chapter in the forthcoming Encyclopedia of Social Network Analysis and Mining.
Stephen Wilson, Lockstep Consulting, Sydney, Australia.
Anna Johnston, Salinger Privacy, Sydney, Australia.
Key Points
- Facebook's business practices pose a risk of non-compliance with the Collection Limitation Principle (OECD Privacy Principle No. 1, and corresponding Australian National Privacy Principles NPP 1.1 through 1.4).
- Privacy problems will likely remain while Facebook's business model remains unsettled, for the business is largely based on collecting and creating as much Personal Information as it can, for subsequent and as yet unspecified monetization.
- If an OSN business doesn't know how it is eventually going to make money from Personal Information, then it has a fundamental difficulty with the Collection Limitation principle.
Introduction
Facebook is an Internet and societal phenomenon. Launched in 2004, in just a few years it has claimed a significant proportion of the world's population as regular users, becoming by far the most dominant Online Social Network (OSN). With its success has come a good deal of controversy, especially over privacy. Does Facebook herald a true shift in privacy values? Or, despite occasional reckless revelations, are most users no more promiscuous than they were eight years ago? We argue it's too early to draw conclusions about society as a whole from the OSN experience to date. In fact, under laws that currently stand, many OSNs face a number of compliance risks in dozens of jurisdictions.
Over 80 countries worldwide now have enacted data privacy laws, around half of which are based on privacy principles articulated by the OECD. Amongst these are the Collection Limitation Principle which requires businesses to not gather more Personal Information than they need for the tasks at hand, and the Use Limitation Principle which dictates that Personal Information collected for one purpose not be arbitrarily used for others without consent.
Overt collection, covert collection (including generation) and "innovative" secondary use of Personal Information are the lifeblood of Facebook. While Facebook's founder would have us believe that social mores have changed, a clash with orthodox data privacy laws creates challenges for the OSN business model in general.
This article examines a number of areas of privacy compliance risk for Facebook. We focus on how Facebook collects Personal Information indirectly, through the import of members' email address books for "finding friends", and by photo tagging. Taking Australia's National Privacy Principles from the Privacy Act 1988 (Cth) as our guide, we identify a number of potential breaches of privacy law, and issues that may be generalised across all OECD-based privacy environments.
Terminology
Australian law tends to use the term "Personal Information" rather than "Personally Identifying Information" although they are essentially synonymous for our purposes.
Terms of reference: OECD Privacy Principles and Australian law
The Organisation for Economic Cooperation and Development has articulated eight privacy principles for helping to protect personal information. The OECD principles are as follows:
1. Collection Limitation Principle
2. Data Quality Principle
3. Purpose Specification Principle
4. Use Limitation Principle
5. Security Safeguards Principle
6. Openness Principle
7. Individual Participation Principle
8. Accountability Principle
Of most interest to us here are principles one and four:
- Collection Limitation Principle: There should be limits to the collection of personal data and any such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject.
- Use Limitation Principle: Personal data should not be disclosed, made available or otherwise used for purposes other than those specified in accordance with [the Purpose Specification] except with the consent of the data subject, or by the authority of law.
At least 89 counties have some sort of data protection legislation in place [Greenleaf, 2012]. Of these, in excess of 30 jurisdictions have derived their particular privacy regulations from the OECD principles. One example is Australia.
We will use Australia's National Privacy Principles NPPs in the Privacy Act 1988 as our terms of reference for analysing some of Facebook's systemic privacy issues. In Australia, Personal Information is defined as: information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Indirect collection of contacts
One of the most significant collections of Personal Information by Facebook is surely the email address book of those members that elect to have the site help "find friends". This facility provides Facebook with a copy of all contacts from the address book of the member's nominated email account. It's the very first thing that a new user is invited to do when they register. Facebook refer to this as "contact import" in the Data Use Policy (accessed 10 August 2012).
"Find friends" is curtly described as "Search your email for friends already on Facebook". A link labelled "Learn more" in fine print leads to the following additional explanation:
- "Facebook won't share the email addresses you import with anyone, but we will store them on your behalf and may use them later to help others search for people or to generate friend suggestions for you and others. Depending on your email provider, addresses from your contacts list and mail folders may be imported. You should only import contacts from accounts you've set up for personal use." [underline added by us].
Without any further elaboration, new users are invited to enter their email address and password if they have a cloud based email account (such as Hotmail, gmail, Yahoo and the like). These types of services have an API through which any third party application can programmatically access the account, after presenting the user name and password.
It is entirely possible that casual users will not fully comprehend what is happening when they opt in to have Facebook "find friends". Further, there is no indication that, by default, imported contact details are shared with everyone. The underlined text in the passage quoted above shows Facebook reserves the right to use imported contacts to make direct approaches to people who might not even be members.
Importing contacts represents an indirect collection by Facebook of Personal Information of others, without their authorisation or even knowledge. The short explanatory information quoted above is not provided to the individuals whose details are imported and therefore does not constitute a Collection Notice. Furthermore, it leaves the door open for Facebook to use imported contacts for other, unspecified purposes. The Data Use Policy imposes no limitations as to how Facebook may make use of imported contacts.
Privacy harms are possible in social networking if members blur the distinction between work and private lives. Recent research has pointed to the risky use of Facebook by young doctors, involving inappropriate discussion of patients [Moubarak et al, 2010]. Even if doctors are discreet in their online chat, we are concerned that they may run foul of the Find Friends feature exposing their connections to named patients. Doctors on Facebook who happen to have patients in their webmail address books can have associations between individuals and their doctors become public. In mental health, sexual health, family planning, substance abuse and similar sensitive fields, naming patients could be catastrophic for them.
While most healthcare professionals may use a specific workplace email account which would not be amenable to contacts import, many allied health professionals, counsellors, specialists and the like run their sole practices as small businesses, and naturally some will use low cost or free cloud-based email services. Note that the substance of a doctor's communications with their patients over webmail is not at issue here. The problem of exposing associations between patients and doctors arises simply from the presence of a name in an address book, even if the email was only ever used for non-clinical purposes such as appointments or marketing.
Photo tagging and biometric facial recognitio
One of Facebook's most "innovative" forms of Personal Information Collection would have to be photo tagging and the creation of biometric facial recognition templates.
Photo tagging and "face matching" has been available in social media for some years now. On photo sharing sites such as Picasa, this technology "lets you organize your photos according to the people in them" in the words of the Picasa help pages. But in more complicated OSN settings, biometrics has enormous potential to both enhance the services on offer and to breach privacy.
In thinking about facial recognition, we start once more with the Collection Principle. Importantly, nothing in the Australian Privacy Act circumscribes the manner of collection; no matter how a data custodian comes to be in possession of Personal Information (being essentially any data about a person whose identity is apparent) they may be deemed to have collected it. When one Facebook member tags another in a photo on the site, then the result is that Facebook has overtly but indirectly collected PI about the tagged person.
Facial recognition technologies are deployed within Facebook to allow its servers to automatically make tag suggestions; in our view this process constitutes a new type of Personal Information Collection, on a potentially vast scale.
Biometric facial recognition works by processing image data to extract certain distinguishing features (like the separation of the eyes, nose, ears and so on) and computing a numerical data set known as a template that is highly specific to the face, though not necessarily unique. Facebook's online help indicates that they create templates from multiple tagged photos; if a user removes a tag from one of their photo, that image is not used in the template.
Facebook subsequently makes tag suggestions when a member views photos of their friends. They explain the process thus:
- "We are able to suggest that your friend tag you in a picture by scanning and comparing your friend's pictures to information we've put together from the other photos you've been tagged in".
So we see that Facebook must be more or less continuously checking images from members' photo albums against its store of facial recognition templates. When a match is detected, a tag suggestion is generated and logged, ready to be displayed next time the member is online.
What concerns us is that the proactive creation of biometric matches constitutes a new type of PI Collection, for Facebook must be attaching names -- even tentatively, as metadata -- to photos. This is a covert and indirect process.
Photos of anonymous strangers are not Personal Information, but metadata that identifies people in those photos most certainly is. Thus facial recognition is converting hitherto anonymous data -- uploaded in the past for personal reasons unrelated to photo tagging let alone covert identification -- into Personal Information.
Facebook limits the ability to tag photos to members who are friends of the target. This is purportedly a privacy enhancing feature, but unfortunately Facebook has nothing in its Data Use Policy to limit the use of the biometric data compiled through tagging. Restricting tagging to friends is likely to actually benefit Facebook for it reduces the number of specious or mischievous tags, and it probably enhances accuracy by having faces identified only by those who know the individuals.
A fundamental clash with the Collection Limitation Principle
In Australian privacy law, as with the OECD framework, the first and foremost privacy principle concerns Collection. Australia's National Privacy Principle NPP 1 requires that an organisation refrain from collecting Personal Information unless (a) there is a clear need to collect that information; (b) the collection is done by fair means, and (c) the individual concerned is made aware of the collection and the reasons for it.
In accordance with the Collection Principle (and others besides), a conventional privacy notice and/or privacy policy must give a full account of what Personal Information an organisation collects (including that which it creates internally) and for what purposes. And herein lies a fundamental challenge for most online social networks.
The core business model of many Online Social Networks is to take advantage of Personal Information, in many and varied ways. From the outset, Facebook founder, Mark Zuckerberg, appears to have been enthusiastic for information built up in his system to be used by others. In 2004, he told a colleague "if you ever need info about anyone at Harvard, just ask" (as reported by Business Insider). Since then, Facebook has experienced a string of privacy controversies, including the "Beacon" sharing feature in 2007, which automatically imported members' activities on external websites and re-posted the information on Facebook for others to see.
Facebook's privacy missteps are characterised by the company using the data it collects in unforeseen and barely disclosed ways. Yet this is surely what Facebook's investors expect the company to be doing: innovating in the commercial exploitation of personal information. The company's huge market valuation derives from a widespread faith in the business community that Facebook will eventually generate huge revenues. An inherent clash with privacy arises from the fact that Facebook is a pure play information company: its only significant asset is the information it holds about its members. There is a market expectation that this asset will be monetized and maximised. Logically, anything that checks the network's flux in Personal Information -- such as the restraints inherent in privacy protection, whether adopted from within or imposed from without -- must affect the company's futures.
Conclusion
Perhaps the toughest privacy dilemma for innovation in commercial Online Social Networking is that these businesses still don't know how they are going to make money from their Personal Information lode. Even if they wanted to, they cannot tell what use they will eventually make of it, and so a fundamental clash with the Collection Limitation Principle remains.
Acknowledgements
An earlier version of this article was originally published by LexisNexis in the Privacy Law Bulletin (2010).
References
Greenleaf G., "Global Data Privacy Laws: 89 Countries, and Accelerating", Privacy Laws & Business International Report, Issue 115, Special Supplement, February 2012 Queen Mary School of Law Legal Studies Research Paper No. 98/2012
Moubarak G., Guiot A. et al "Facebook activity of residents and fellows and its impact on the doctor--patient relationship" J Med Ethics, 15 December 2010
