By Greg Mills

Personally, I don't do FaceBook.  However, my wife does FB and loves it.  Therefore, privacy issues in FaceBook's new geotagging pictures with names using facial recognition software residing on FaceBook servers, affects me as well as her.  Since I tend to show up in the pictures she posts on line, my pictures are included quite often.  

Someone on FaceBook can geotag pictures associating names with what were posted as anonymous pictures, and suddenly pictures have your name emblazoned on them.  This is done without your consent, soon name-tagged pictures will pop up anywhere on the net beyond your control.  Not everyone will like that idea.

FaceBook will soon recognize you, by default, on any of the anonymous millions of pictures found globally on FaceBook servers.  How do you opt out of that?  Some 200 million pictures a day go on line at that site.  

While FaceBook plans to ask the account holder if it is okay to tag their pictures with suggested names, the permission to tag a photo is given by the account holder, not the person in the pictures they have posted.  While this is the way the new facial recognition feature is expected to work, you know how things on the web tend to slip and slide, from a policy standpoint.  It is as if FaceBook thinks everyone is part of their membership.

FaceBook recently turned the facial recognition feature on, "since so many people using FaceBook are tagging pictures already".  But, they had the gall to make the feature an opt out feature instead of an opt in feature.  The differences are striking from a privacy standpoint.  

The facial recognition feature compares face geometry and then suggests the name of a person in the photograph. Users confirm by clicking a check box that the servers guess is correct.  This teaches the servers to do that job better as time goes on the accuracy will improve.

Many people won't know or even care that this feature is turned on by default.  Some people do care.  It is sort of like fast food places that put sugar in all the iced tea.  If you don't like sugar in your tea, you are out of luck.  

That is opt-out and opt-in, in a nut shell.  Taking away choice, since a majority like things a certain way is the road to mind numbing uniformity.  I hate sugar in my tea and won't drink it that way.  Not being particularly shy, I have given some fast food managers an ear full on that issue and demanded my money back for my drink.  You can always add sugar to tea, but you can't easily take it out.  

Ironically, the privacy rights of the people in the pictures aren't even considered an issue, yet by Facebook.   Once FaceBook and/or the people who post pictures and then tag them without the permission of the person being photographed get sued, there may be a reconsideration of glibly adding people's names to anonymous pictures without expressed consent by the person in the picture.  

Legally, consent to post pictures on line must come from the photographed person, not the person who merely posts the picture or tags it with a name.  Legally, the person in the picture is the plaintiff and  the person who tags the picture and FaceBook are the defendant when it goes to court.  Plaintiffs collect damages, and defendants pay damages.  

People have a legal right to allow their pictures to be publicly posted or not.  Model releases are required in commercial situations to insure the person photographed gives their consent for their picture to be published.  FaceBook users certainly don't have the consent of everyone in pictures they post on line and certainly don't have permission to also tag previously anonymous photos with a name.

Even Google, the "everything should be on line" people, have held back on using facial recognition software on their various sites.  Privacy isn't an issue until it is a problem, and then it is too late to avoid the unexpected down side.  Google was afraid of being sued.  FaceBook doesn't seem to care.  I wonder if FaceBook has an in-house attorney who passed on this obvious invasion of privacy, which is certain to be a cause of legal action?  

Google had fully completed an engineering similar photo facial identification feature that was ready to turn on and then the legal department decided not to launch it for fear of being sued.  One executive with Google recently stated with a wiry grin, "lets let FaceBook sort this out in court, for us".  They hire smart people at Google.  

The Google software would allow you to input a picture, and the Google servers would find the likely name of the person by sorting through a database of tagged pictures.  This is sort of like what they do on NCIS when they run a picture through the database to find out who is pictured.  

I predict FaceBook will be sued sooner than later and that they will lose hands down if it goes to trial.  The expectation that it is ok with everyone to use their image without specific consent is nuts and will certainly come home to roost.  This is especially true when the geotagging feature is automatic, without specific permission and is actually global on FaceBook.  The right to control your own image is well established in law.  Class action lawsuits are sure to be launched as even European governments are considering action.

Not only is Facial Recognition on by default on FaceBook, it is hard to find to turn off without following specific instructions.  The preference is buried deep with various action required to find the switch.  

There are five obscure steps specifically required to shut it off in a FaceBook account's facial recognition feature.  1. Click account at the upper right side of your FaceBook page.  2. Using a drop down menu select privacy settings  3. At the bottom of several pages of settings is the word custom, click it 4. Scroll down "things others share" to "Edit settings."  5. If you have done everything right, a pop up appears with "Photos, suggest tags."  Click that and then confirm your action when prompted.

Now, you have opted out of a feature I bet you didn't know was turned on by default.  This still doesn't prevent someone else from geo-tagging a picture of you, so FaceBook still knows who you are any time anyone posts your picture anywhere on FaceBook.  Isn't technology great?  I will keep my ear to the ground for rumblings of a class action lawsuit to shut down FaceBook's facial recognition globally.  My guess is that will happen by the end of the week.

FaceBook has set the feature to be limited from the user point of view to those linked to them.  This is sort of like a partition on a hard drive.  The underlying technology and data base however, is global on FaceBook servers.  Hackers or the government will no doubt use the entire giant database to data-mine FaceBook for "hits" on people they are interested in.  

While similar technology is found in Apple iPhoto, the facial recognition software resides on your computer and isn't a public disclosure of your image and name.  Will iCloud somehow change the situation?  I think that is unlikely.    

The British are becoming used to the idea that just walking down a sidewalk in London can get your face identified by 50 police cameras in a single afternoon.  Will Americans put up with that level of invasion of privacy? FaceBook thinks so; I don't.  

The facial recognition technology when used by police is touted to seek out terrorists and wanted criminals.  That is all theorized to be a way to make us all safer.  Ben Franklin, the inventor of many good things and a few very questionable things (like daylight savings time), once famously said, "Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one."  

That's Greg's Bite, as well.

(Greg Mills is currently a graphic and Faux Wall Artist in Kansas City. Formerly a new product R&D man for the paint sundry market, he holds 11 US patents. Greg is an Extra Class Ham Radio Operator, AB6SF, iOS developer and web site designer. He's also working on a solar energy startup using a patent pending process for turning waste dual pane glass window units into thermal solar panels used to heat water see: www.CottageIndustrySolar.com Married, with one daughter, Greg writes for intellectual property web sites and on Mac/Tech related issues. See Greg's art web site at http://www.gregmills.info He can be emailed at gregmills@mac.com )