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Artificial Intelligence and Privacy Issues

This month on our blog we have been talking about internet law related legislation and development.  This week will continue the topic with a discussion of artificial intelligence and privacy issues.  Specifically, we will talk about Google’s new Duplex technology, which allows users to make appointments, book reservations, and call businesses via an artificial intelligence robot.

Last month, Google introduced Google Duplex at their annual conference.  Google’s CEO presented the technology on stage, and played a recorded phone call in which the digital assistant booked a hair appointment for a client.  A second conversation of the digital assistant making a restaurant reservation was also played.  What was immediately striking about these conversations is how realistic the robot sounded.  Upon listening, the robot voice and interaction is nearly indistinguishable from a human conversation.  The digital assistant uses phrases such as “uh” and “mmhmm,” and also pauses before responding as if it is “thinking” of a response.  More often than not, the party on the other end of the line likely has no idea they are talking with a robot, or even further that they are being recorded.  This may pose a liability for Google.

Google has been recording the conversations that the robots have in order to improve and modify the technology.  By recording the conversation, engineers at Google can see exactly what phrases, or questions, make the robot function in a less than optimal way.  When engineers and programmers are able to recognize these challenging variants in conversation, they are more able to program an appropriate response for the robot, so as to make the technology more user-friendly and successful.  Problems arise in the legal world, however, when Google developers fail to tell the party on the other end of the line that they are being recorded.

In California, it is a crime to record any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation.  California Penal Code § 632 denotes that persons who intentionally record confidential communications without the consent of all parties may be punished by a fine of up to $2,500 per violation, or imprisonment not exceeding one year, or both.  Persons is defined broadly to include businesses and corporations.  This means that Google can be in violation of section 632 if it records a phone call between a digital assistant and a person in California since Google is headquartered in this state.  If a person or entity has previously been convicted of violating section 632, the fine increases to up to $10,000 per violation.

While Google claims that it is standard protocol for the digital assistant to announce itself to people it calls, and to state that the call is being recorded, neither of the two conversations that Google’s CEO played at their annual conference contained such warnings.  On another note, California’s two party consent law applies even if only one of the parties to the phone call lives in California.  This means that even if Google tried to get around the problem by calling a restaurant in Texas, for example, they would still need to obtain consent from the party in Texas to record the conversation.

Google is still developing the technology, and hopes to have an early version released this summer to select users who will test the digital assistant.  Google assures that when they do launch Duplex, it will have a disclosure system built into it’s operating system, so as to identify itself and let the other party know they are speaking with an artificial intelligence robot.  Google envisions the technology as allowing users to schedule an appointment, haircut, restaurant reservation, etc., to save time.  There are hopes that this technology will compete with Amazon’s Alexa and Apple’s Siri.

While Google has been made aware of the privacy concerns from a backlash of some in the legal field, they have not specifically stated how they plan to comply with California’s law during further testing of the phone calls.  Because this is such a novel and un-litigated area, the law may be grey rather than black and white on where to draw the line.

At our law firm, we assist clients with legal issues related to business, cybersecurity, e-commerce, privacy, and technology related issues.  Please contact us to set up an initial consultation.