Spying on you is OK because you can spy on someone else…

TescoThis week we saw 2 announcements that, in all honestly, have caused me to dig out the old soap box, give it a dusting and get right back on it (it’s been a while). I did think about separating out these 2 items into 2 blogs but then I remembered the small mountain of other things I need to do, so decided to merge into one soap box moment.

Alongside the events of the phone hacking scandal, which in itself has been most interesting, Tesco announced that it was going to take a big step forward to that futuristic personalised marketing that films like ‘Minority Report’ show. In that you can walk down the street or into a store, have your face scanned and a personal marketing campaign be shown to you while you browse. If you haven’t seen Minority Report I do recommend it, not for Tom Cruises usual standard of stiff acting but for the marketing vision that it portrays and some of the legal concepts that it adopts. A very good pub talk topic!

Tesco will be using technology called OptimEyes screens which have been developed by Alan Sugar’s Amscreen. The proposal is for this technology to be deployed at Tesco’s 450 petrol stations throughout the UK. The technology, according to it’s designer, is designed to give advertisers real-time information on how many people of what gender and age group are viewing their ads at a given time of day. Apparently, according to reports, this technology will ‘revolutionise’ the way retail sector markets its products. Yes, we know, this is indeed step one down the road to a marketing intensive technological nightmare.

Now Tesco and OptimEyes have stated that the technology doesn’t record the images but instead just uses the information that it gathers (gender and age group) and assigns a time stamp to it. This, according to both organisations, means that there is no invasion of privacy because Tesco will never know who the data belongs to and it’s just a list of genders, ages and time stamps. Call me awkward, but I disagree…

In the Information Commissioner’s code of practice on Anonymisation it states that among other things, information is only anonymous if the data controller does not have access to other information that can be married against this information in order to identify individuals.  Doesn’t Tesco already have CCTV in its petrol forecourts that capture video images of customers along with time stamps and (reasonably) clear identify of age group and gender? It wouldn’t take someone very long to determine from the marketing data that the ‘female’ 50-60 year old that viewed the advert at 13:55 was Mrs J Bloggs because the CCTV shows her coming into the petrol station at that time and shows her paying by card (data which Tesco also collects, as well as her clubcard data).

Now Tesco will argue that their policies and procedures prevent them from doing such things and that through “segregation” of such data there is no way to data match. However, this effectively the same as saying that I lock one donut in one box and one donut in another and the only thing stopping me from using the keys I have to open the boxes is my determination that I need to eating healthily. If you are anything like me, one desperate afternoon and you’ll find both donuts gone and a promise never to lock donuts away ever again.  

This view is often shared by DP regulators and one that the ICO has voiced in tha past. Now, to be fair to the company that created the technology they may well believe that the tool is privacy neutral but when given to other organisations, if they are collecting data on people already, that ‘privacy neutrality” suddenly becomes more coloured.

Based on this analysis, it is reasonable to conclude that the data collected by the cameras is indeed personal data as defined by the Data Protection Act 1998 and therefore the principles and conditions of The Act come into effect. One big question that I have would be how are they going to collect consent from data subjects? And what happens if a data subject was to refuse to provide that consent?  In order for the system to work there would have to be some sort of link to that customer’s existing record with Tesco in order to identify the ones that had refused consent and delete their data before it can form part of that dataset. But what about customers that don’t have a record with Tesco? How to they opt out from their data being collected? A “press here now to opt out” button when paying for their fuel that deletes their record? Now that is simplifying the technology hugely but essentially that is what the system would need to do.

On a slightly related subject, BBC Radio 4 ran an article on Friday morning (8th November 2013) on big data and how it can impact sport. Namely, there is an initiative underway to capture and monitor rugby players medical information during a game to determine how the player is doing and what stresses the body undergoes during a match. Now, on its own it sounds like a sensible medical purpose to help clubs ensure their rugby players don’t suffer (or reduce) the number of severe injuries. However, the plan (or vision as it was sold) is for this data to be broadcast live during a rugby match at some point in the near future. That way viewers can see what the player is experiencing as they make a tackle or line up to take a crucial free kick. 

The argument for allowing such data collection is that sports players expect a level of privacy intrusion as they are watched by millions (or thousands) as they play out their game. They are, as the saying goes, very much in the public domain. But surely that are in the public domain purely for playing rugby? Last time I checked, enjoying rugby didn’t mean knowing that the player making a run with the ball has a heart rate of 134 bpm (beats per minute). As this is medical data I’d like to know how processing of this data meets with any of the conditions of processing Sensitive Personal Data. Or even just the conditions of processing personal data for that matter. Can you argue that consent is freely given in an environment where players are sponsored and you can be hired and fired at a moment’s notice? Where is the legitimate interest of the data subject in broadcasting this to the world? I can see the argument for collected by the club and kept secure as they need to ensure and protect the health of their players but does the public?

The interview given by BBC Radio 4 was brief and although they touched on privacy it was quickly overlooked. Now I like Radio 4, but when it comes to discussions about Privacy they go very right-wing and overlook it. A similar article last month on Big Data on its won also completely overlooked the implications of Big Data and just sold it as something we all need to save our lives (please think of your children I think was the general tone).  While the benefits of Big Data can speak for themselves if we are to have a debate on it then we need to have both sides of the argument. If you want Big Data then you have to give up some of your expectations of privacy. Once again another example of privacy being a qualified, or as I call it a “purchasable” right (you can have your privacy, but at a cost).  

Credit to www.grahamcluley.com for the covering image.
Link to Tesco News Article
Link to BBC Radio 4 Website

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