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 Topics
 
Related Articles
 
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions