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Sunday, December 02, 2007 

Vol. 3 No. 26

“I Spy”…I’m Starting to Get A Bit Concerned…I Bet Other Folks Will Be Soon As Well…

Combine Telematics/GPS Systems, with Current “Normal” Surveillance Cameras, and Innovations like “Beacon” on Facebook and Privacy Truly Does Become a Thing of the Past

This blog entry started out as a simple highlight of a “Letter to the Editor” in the September issue of Automotive Fleet Magazine that I thought raised a particularly interesting point in a new area of the law, surrounding a relative new technology, that is, telematics/GPS installation systems for fleet vehicles. These systems allow fleet managers and employers to monitor and have a detailed online digital record of the entire history of fleet vehicle’s excursions-- every stop, every time the motor is turned on or off, etc. The letter writer managed a utility fleet that had the devices installed in a pilot program and the company’s union had put in a policy grievance based on privacy issues and changes in working conditions. They basically argued that the devices could be used in vehicles but the results of monitoring could not be used for disciplinary purposes. Having no direct case law as precedent, the fleet manager was subject to the pre-arbitration ruling that stated emphatically that telematics systems cannot be used for disciplinary purposes, and that no judge or arbitrator would allow an invasion of privacy to this degree. However, it did suggest it could be used for breaches of criminal law – in short, an employee could not be taken to task because the telematics system revealed he spent the afternoon at a local bowling alley (or worse) as opposed to being “on the job,” but if the installed telematics revealed that the vehicle was used in an armed robbery, then the tracking evidence could be utilized as evidence. The writer’s question was simply if anyone else faced this issue and if this is the case in all circumstances, then the “legal brick wall” greatly reduced the benefits of installing telematics/GPS systems.

Now one of the reasons why Automotive Fleet Magazine is the “bible of the fleet industry” and why I think the “Letters to the Editor” section is way more informative than similar sections in other magazines, is because Ed Bobit, Mike Antich, and the rest of the crew do an excellent job to investigate and get the best answer/responses for good topical issues and questions. This was indeed the case once again, when this reader’s query was answered in print by
Ann P. Fourney, attorney for the automotive issue focused law firm of Hudson Cook, LLP in Washington, D.C., where she responded that the cited “grievance by the union in question may be based on a collective bargaining agreement management and the union,” and, “if so, the issues involving work conditions will be resolved in accordance with the collective bargaining agreement and applicable labor laws,” “However, these labor relations issues do not implicate federal privacy laws.” Fourney went on to say that “Generally speaking, fleet-oriented telematics/GPS products, used in accordance with the vendor’s instructions (and with the notice provided to the employee) do not violate privacy laws,” and “In fact, a properly designed telematics/GPS product reflects a careful balance between an employee’s right to privacy and an employer’s legitimate need for the information.”

So That Was It, The Issue, the Question, and the Answer--Until I Picked Up a Newspaper This Week…

So simply, there was the concern and the answer, providing a brief but information filled topic that I wanted to provide more exposure to in this blog. I thought it was interesting both from a fleet and legal perspective (because of my background I’m one of those strange folks that looks for the intersection of both topics), and that was the end of that, until I was reminded of the issue this week, in two distinctly different articles in Wednesday’s issue of the Wall Street Journal (November 28, 2007). They were different articles but each dealt with the what is now the perceived issue of privacy, and when looked on together from a broader perspective, and combined with the “telematics at work” issue, really makes one think about how personal privacy is fast becoming a myth propagated by the uninformed.

The first article that I saw on the topic in the WSJ last Wednesday was in the editorial section, the “Business World” article written by long time Journal editorial writer, Holman W. Jenkins, Jr., entitled, “
I Spy.” In it he highlights a new movie, “Look,” co-produced by Barry Schuler, about surveillance. Interestingly enough when combined with the topic of the second article I’ll cite from the paper that day, Jenkins’ says that Schuler began thinking about the topic when he was CEO of AOL, and "the subpoenas began arriving for access to member’s emails." It also said that “Adam Rifkin, the film’s director and screenwriter…had a similar epiphany: He was nailed by a traffic camera for running a red light.”

The film “Look” is a “loose-hanging collection of intersecting plotlines…whose stories are seen entirely from the perspective of surveillance cameras at ATM machines, high school parking lots, a department store stockroom, etc.” (Hey, it occurs to me they could have included dealership “F & I” closing rooms, as lots of those have video recording cameras running as well these days). “The characters are mostly unaware that their behavior and misbehavior is being recorded. The audience isn’t. Hence the film’s ingenious charm.” (the film apparently sports an “R” rating and was lucky to get off that easy).

The article goes on to state that Schuler’s research found that most of the nation’s 30 million closed-circuit private surveillance cameras aren’t monitored by security pros (surprise?), but manned by minimum wage teenagers, the very same folks who like to make unauthorized highlight reels and post them on YouTube… You get the drift here folks…the movie is fiction but the underlying situation is very real – this is not a movie of what may happen in the future, this is happening right now, all the time, in lots of places.

What is coming in the very near future, however, is of even more concern. “The surveillance cameras of the future will be networked – linked to each other and computers capable of face recognition and other kinds of pattern recognition, and thus able to extract information about who and what the camera is seeing.” As is quoted, “In a much-noted October speech,
Donald Kerr, who serves as No. 2 overseeing the nation’s intelligence agencies, laid out a hard truth – “in our interconnected and wireless world,” he said, “anonymity- or the appearance of anonymity – is quickly becoming a thing of the past..And our only hope for “privacy” (meaning some degree of control over who has access to private information), he argued, is by trusting government.”

Okay, so is anyone concerned yet?

If not, let me move on to the final article in the Wall Street Journal, that ran the very same day, in the front page of the “Marketplace” section, the “Portals” column by Vauhini Vara, entitled, “
Just How Much Do We Want to Share On Social Networks.” In this article a new automatic “service” on the social networking site Facebook is highlighted, called Beacon, which, get this, automatically follows its members around the Internet and reports back to all listed friends all of that member’s Web based transactions ( all purchases: clothes, movie tickets, books, online films etc.) – by the way, apparently a Facebook member doesn’t get a choice in this if you join this social network, which is why, I think business/professional social network sites are sorely needed that adopt the best business networking traits of social networks but thatprotect things like privacy and aren’t geared towards kids, even college kids, that frankly don’t know any better than to accept these “innovations” for the sake of feigned “closeness” with hundreds of online “friends,” any more than they yet have not gotten tired of “thrown sheep”or “pokes” from “friends.”

If you buy something from an online site that has signed up with Beacon, a note is sent to your Facebook profile automatically, and in an area of your friends Facebook account under “news feeds” which gives them updates on friends activities…and of course, an ad for the purchase site can accompany the news feed note. Its reported, “Fandango (the movie ticketing site), Blockbuster and Overstock.com are among the few dozen commercial sites on board already” – why wouldn’t every online vendor sign up, as no compensation is paid to you for the broadcast of your purchase behavior (as the article says, you get nothing from the transaction, “except the satisfaction of having yet another way to broadcast your every move to every friend”).

Of course you get to “opt out” of this invasive device, but as the article says, that isn’t easy… the box that appears at your initial item purchase time on the corner of your computer screen stays there for all of 30 seconds, saying, for instance, “Fandango is sending this to your Facebook profile: Vauhini bought No Country for Old Men on Fandango.” Then, on your Facebook account, there is a similar notice at the top of the page, but to stop the broadcast to all friends takes four clicks, while one click of “ok” forever pastes your purchase history to all of your listed friends. “Beacon asks Facebook users to make ever more-invasive trades for the sake of an ever more superficial sense of closeness.”

I have to add my own observation here, that is, blatant privacy invasion devices like these (unlike the surveillance cameras or telematic/GPS devices noted above that have a good underlying security justification), in my opinion, will ultimately identify and relegate Facebook to be an inexperienced “kids play world” forever, just as MySpace is today – 35% of the audience is under 18 years old and 15% are parents trying to watch this 35%. And then you add to this percentage the audience that wants to sell to this teen mentality buying group, entertainers, clubs and the like, and I’m not convinced there are too many full grown adults on these networks, or that the their adult membership is growing significantly. As one well known VC partner stated (an investor in a product servicing one of these sites I might add), "if you are over 40 and on either of these social networks, well, you are kind of creepy…"

In any event, I think experienced business folks wouldn’t put up with exploitive “innovations” like “Beacon” for 30 seconds…no self respecting networking site, that catered to adult users, would allow its use, let alone promote Beacon as a service. As

Adam Nash, Senior Director of Product for LinkedIn.com said when I heard him speak in Philadelphia at the Entrepreneurs Forum recently, you would never see LinkedIn.com allowing “widget” software that allowed the viral sending of virtual “sheep throwing,” or “zombie pirate bighting” messages, apparently the two highest volume application software widgets circulating on Facebook today. As identified, LinkedIn is geared towards adult professionals, who, if exposed to such things even once, would sign off and never return.

In my opinion, it’s time that social networking online get out of the “kiddy playground” that MySpace and Facebook have created, and use the advanced technology for networking available to create business networks specialized in various career disciplines. I think innovations on Facebook like “Beacon” only reinforce this idea, and LinkedIn has done a lot to move things in the right direction, but there are still a lot more, business focused networks yet to be created.

So Back to the Issue at Hand…In Summation…

So what started out to be a rather innocuous blog entry highlighting some useful information that was in a recent “Letters to the Editor” area of Automotive Fleet Magazine about the (again rather innocuous) use of telematics/GPS in fleet vehicles, turned out to have some larger ramifications, when put in the broader perspective of surveillance, as the topic and message outlined in the editorial section of a recent Wall Street Journal reviewing the recent film, “Look,” then combined with the article in the very same issue dealing with the reality of online surveillance software on the second most popular social networking site on the Web. My observations/conclusions to all of this:

a) None of these topics involve future surveillance, all this stuff – telematics, public videos monitored by non-qualified civilians, Internet tracking surveillance is all proliferating right now

b) To the extent adult business people can provide limits they do, i.e. the actual discussion in Automotive Fleet of the issues present at the very beginning of the mainstream use of telematics

c) To the extent inexperienced consumers/young people are exposed to online surveillance, sensitivities are not so heightened, so indeed, there are no limits to date and widget makers such as Beacon are free to do what they like; frankly, I’d be more concerned about an online service tracking and broadcasting my every Internet purchase, than I would my employer tracking my employer provided vehicle during business hours, but I’ve yet to see any serious consumer/legal backlash on such an Internet surveillance

d) Perhaps the only protection we have in this increasingly interconnected, surveillance filled world is, as the Journal describes it, “normal democratic pushback” to help “curb the excesses by questioning the competence and motives of government” as has occurred in Britain, probably the most “watched” society. Or as it says, “the best hope for taming the new technology is simply voters’ learning curve” and films like “Look” serve as “a kind of public service announcement.” But…

e) How long is this learning curve, if the youngest adult demographically skewed Web sites can actively and commercially promote and expand privacy damming surveillance widgets online and be greeted not with outrage or even suspicion, but with an almost naïve enthusiasm? In fact, given that this is the case, we provide a huge economic incentive for these firms to become more skilled at surveillance (the participants in Facebook don’t even get a cut of the revenue their purchase surveillance generates) and equally skilled at glossing over “opt in” provisions.

What do you think?

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