United States: What Do Brands Need To Know About Voice-Enabled Platforms And Devices? Part I: The Basics And A Few Privacy Issues

Last Updated: February 10 2017
Article by Daniel M. Goldberg

In 2016, Amazon sold millions of Amazon Echos worldwide. Brands have taken notice, and begun to develop and release third party software integrations, or "Skills" as Amazon calls them, for the Alexa platform as well as for other voice-enabled platforms and devices. Once again, the law is playing catch-up with technology, and we are here to help you navigate the thorny issues.

Alexa, what are voice-enabled platforms and devices?

For purposes of this post, voice-enabled platforms and devices are those that use a combination of software and hardware to continuously listen and respond to the surrounding environment. The most well-known device dedicated to this "always-on" functionality is the Amazon Echo. The Amazon Echo, based on the Alexa platform, uses a far-field microphone to listen at all times for the wake word "Alexa," and upon identification of that word, records and transmits subsequent sounds over the internet in order to determine and provide an appropriate response. Other examples of voice-enabled devices that combine software and hardware from a single manufacturer include Google Home (based on the Google Assistant platform) and Microsoft Kinect (based on the Windows Cortana platform). While Apple does not offer a standalone device at this time, it provides similar "always-on" functionality through its iOS platform when a user utters the key phrase, "Hey Siri."

What makes the voice-enabled platforms and devices from Amazon and Google particularly attractive to brands is that they are now widespread among target audiences and allow brands to integrate their own services through the use of APIs. There are two types of APIs offered at this time. The first type of API allows brands to integrate Skills into the voice-enabled platform. For example, a brand could create a weather Skill that responds to users' questions about the weather. Under this scenario, the brand would develop and make the weather Skill available through the voice-enabled platform, users would find and install the weather Skill through the voice-enabled platform, and users would trigger the Skill through a key phrase, such as by stating the name of the brand and then asking about the weather. Upon triggering of the Skill, the voice-enabled platform operator would record and exchange subsequent information with the brand, including a transcript of the recorded sounds. If you think this process sounds familiar, you are right – it is comparable to the app ecosystems available on smartphone operating systems.

The second type of API has far more expansive implications and allows brands to integrate the voice-enabled platform into their own brand-developed hardware. For example, a refrigerator manufacturer could integrate the voice-enabled platform into its refrigerators to provide smart home functionality to its users. As brands are only just starting to use the second type of API, this post will focus on the privacy concerns implicated by the development of Skills. We will address the integration of voice-enabled platforms in brand-developed hardware in a subsequent post.

Okay Google, what are some of the privacy issues here?

Glad you asked.

One significant issue brands should consider is whether their use of information collected through a Skill complies with the governing privacy policies of the applicable voice-enabled platform. Similar to smartphone app stores, voice-enabled platforms have their own developer agreements that govern use of the platform. Brands need to carefully review these developer agreements to make sure their intended use of the collected information does not violate the provisions within the developer agreements and give the operator of the voice-enabled platform grounds for bringing legal action against the brand or claiming ownership of the data collected by the brand.

Brands should also consider whether they themselves provide their users with sufficient notice and choice with regard to the information they collect through the voice-enabled platform. Again, as with smartphone app stores, voice-enabled platforms provide brands with an option to embed a privacy policy where users download their Skills. Brands should utilize this feature and make sure the posted privacy policy accurately describes how they use the data they collect through the voice-enabled platform. Failure to post a privacy policy or posting an inaccurate privacy policy could constitute an unfair or deceptive act or practice under Section 5 of the Federal Trade Commission Act, as well as a violation of state law such as California's CalOPPA, and warrant scrutiny by federal and state regulators such as the FTC and State Attorneys General.  Brands that intend to use the data for marketing purposes should comply with the self-regulatory guidelines issued by the Digital Advertising Alliance (DAA) and other self-regulatory bodies.

Another issue brands should consider is the type of information they collect and who is providing that information. As with other forms of data collection, brands that target children under the age of 13 will need to be extra careful not to violate the Children's Online Privacy Protection Act (COPPA). Even if a brand does not target children, voice-enabled platforms and devices currently offer no way to age-screen users, and brands could theoretically face potential liability under COPPA for knowingly collecting information about children if the voice-enabled platform records a child mentioning his or her age. Similarly, brands may unexpectedly find themselves in possession of health-related data, background noise from users who did not explicitly consent to the privacy policy, and even data from users outside the U.S., which could implicate international data transfer laws and/or subject the brand to the jurisdiction of other countries. Brands should consider building into their Skills (a la Privacy By Design) the ability to screen the information they collect, and, to the extent permitted by applicable law, removing information that could create potential liability. Such measures are particularly important in light of the EU General Data Protection Regulation (GDPR), which goes into effect in May 2018.

Voice-enabled platforms and devices also raise unique issues regarding law enforcement access to data. Last month, police in Arkansas issued a warrant to Amazon to turn over records collected by an Amazon Echo to assist with the investigation of a murder. While the police turned to Amazon in this case, given that Amazon declined to give police the requested information, in future cases police may instead seek the information from a brand that operates a Skill installed by the murder suspect. Brands should make sure that their privacy policies preserve the ability to respond to lawful subpoenas, government and regulatory requests, and discovery requests, and that they are prepared to object to such requests where such requests are overbroad or seek information that brands are prohibited by law from disclosing under applicable law.

While there are numerous other issues to consider, one last point that warrants discussion at this time is the "creepiness factor." In 2015, Samsung received public criticism after updating its privacy policy in such a way that implied some of its televisions collected personal information through voice recognition software. Since then, California enacted Section 22948.20 of the California Business and Professions Code, which requires prominent disclosure of voice recognition features in smart TVs and restricts voice recognition data collection through smart TVs, in particular for advertising purposes. Also, in 2015, Mattel received criticism for its Hello Barbie doll that records and stores conversations with children for processing by voice-recognition software. Brands should remember that while a particular practice may not violate a specific privacy statute, users could view it as an invasion of their privacy, which could impact a brand's public perception and bottom line.

Hey Siri, how do I find out more?

The legal landscape of voice-enabled platforms and devices is rapidly evolving, and we will continue to monitor and keep you updated on the latest trends.

www.fkks.com

This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Daniel M. Goldberg
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.