Did Google's Duplex Testing Break the Law? (daringfireball.net)

An anonymous reader writes: Tech blogger John Gruber appears to have successfully identified one of the restaurants mentioned in a post on Google's AI blog that bragged about "a meal booked through a call from Duplex." Mashable then asked a restaurant employee there if Google had let him know in advance that they'd be receiving a call from their non-human personal assistant AI. "No, of course no," he replied. And "When I asked him to confirm one more time that Duplex had called...he appeared to get nervous and immediately said he needed to go. He then hung up the phone."

John Gruber now asks: "How many real-world businesses has Google Duplex been calling and not identifying itself as an AI, leaving people to think they're actually speaking to another human...? And if 'Victor' is correct that Hong's Gourmet had no advance knowledge of the call, Google may have violated California law by recording the call." Friday he added that "This wouldn't send anyone to prison, but it would be a bit of an embarrassment, and would reinforce the notion that Google has a cavalier stance on privacy (and adhering to privacy laws)."
The Mercury News also reports that legal experts "raised questions about how Google's possible need to record Duplex's phone conversations to improve its artificial intelligence may come in conflict with California's strict two-party consent law, where all parties involved in a private phone conversation need to agree to being recorded."

For another perspective, Gizmodo's senior reviews editor reminds readers that "pretty much all tech demos are fake as hell." Speaking of Google's controversial Duplex demo, she writes that "If it didn't happen, if it is all a lie, well then I'll be totally disappointed. But I can't say I'll be surprised."

Comments

The Definition:

[Barny]

Conversation, noun:

A talk, especially an informal one, between two or more people, in which news and ideas are exchanged.

How many people were involved? Or are we already granting AI status as a person?

From all the available (I don't live in the US) law information I can find, CONVERSATION seems to be a key word in all of it.

Re:The Definition:

[Barny]

Found the relevant line:

For the purposes of this section, “person” means an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

An AI is none of those things.

Re:The Definition:

[Anubis IV]

So, two things:

1) The actual law refers to communications, not conversations, so the fact that there was a biological person on only one side of the call doesn’t matter. Communication still occurred.

2) Duplex acts on Google’s behalf and Google falls under the definition of “person” according to the law. It’s no different than when you work through an automated phone system and they warn you that the call may be recorded. Whether it’s an AI or a simple automated system, it’s still just a tool being used by the “person” on that end of the line.

But that actually raises an interesting point to consider: are these robocalls, and if so, do they run afoul of federal regulations against robocalls?

Re:The Definition:

[nospam007]

Also this is Google Voice, they can route every call through one of the 1 party consent states.

Who cares?

[PopeRatzo]

Laws don't matter any more. Break 'em or not, if nobody's going to do anything about it, go right ahead. I'm getting that directly from the top.

Re: Who cares?

[Anonymous Coward]

Yes, the Clintons and Albert âoeno controlling legal authorityâ Gore taught us that a generation ago as a follow up to Kennedy getting away with killing a woman.

Re:Who cares?

[PopeRatzo]

I knew this story had to have a Trump angle if you were desperate enough.

Trump? What does he have to do with this? You libs need to stop making everything about Trump.

Lets beat the this dead horse

[Anonymous Coward]

Who cares.

Probably not confidential under California law

[raymorris]

California law (penal code 632) requires consent to record a "confidential communication". It then defines what a confidential communication is and is not.

First, in order to be a "confidential communication", the circumstances must indicate that a party desires it to be confidential between only the people involved in the conversation. In a restaurant or salon, there would have been other people around. If the employee didn't whisper or take the phone into another room, nor talk about personal private matters, they probably didn't intend it to be confidential. Indeed whatever they said to some random person calling, someone they've never met, probably isn't intended to be private.

Secondly, California laws says it's not protected when the parties "may reasonably expect that the communication may be overheard or recorded". (Note the word "may", may be overheard, not "will be overheard". Google assistant says "I'm booking an appointment for a client". It would be reasonable to expect that the client may be overhearing the conversation. People routinely use speakerphone while booking restaurant reservations or hair appointments, so again the restaurant or salon "may reasonably expect that the communication MAY be overheard".

If there was no reasonable expectation of privacy, if it wasn't a confidential communication, recording it doesn't violate the law.

Re:Probably not confidential under California law

[netlag1]

Secondly, California laws says it's not protected when the parties "may reasonably expect that the communication may be overheard or recorded". (Note the word "may", may be overheard, not "will be overheard".

I can reasonably expect that the NSA or another agency may be listening. So I'm free to record any call then?

Re:Probably not confidential under California law

[Anonymous Coward]

I don't think you're wrong. It's one of those things that feels really loophole-ish, though.

My understanding is that a good number of call-centers, if they are informed by the caller that they are being recorded, then the requirement is to immediately disconnect. Something like "Hello, this is Name, how can I help you?", "Hi Name, I must inform you this call is being recorded", *click*. Maybe not that fast, but a quick boiler-plate saying and then *click. Obviously most call centers work across state lines, which doesn't seem to be the case here.

So, I guess to me the CA law feels weird because it requires the call initiator to ascertain the privacy situation of the answerer in advance. For example in a restaurant scenario, what if it's that private office line is only for "those in the know", that super secret line that the plebs don't know about. Might still use a speaker-phone, might be privy to multiple people (corporate meeting w/ a client). This whole thing just feels, hmm, appealable to a Federal District Court, not the 9th obviously.

The libertarian I me almost feels like I need to answer the phone "Hi, it's me, this conversation may be recorded, press #1 to speak".

Re:Probably not confidential under California law

[raymorris]

> The Google demo violated CPC 632

CPC 632(c):

(c)âFor the purposes of this section, âoeconfidential communicationâ means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes ... any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

Care to explain to me how a hair appointment is confidential? How the circumstances indicate the salon wants to keep it a secret, and they would be confident that it couldn't be overheard?

PS it may still be spooky, just not illegal

[raymorris]

Btw still I understand why some might find it a bit spooky. The submission asked if it was illegal, not if it was spooky.

It would be illegal only if the other party was trying to have a confidential discussion and thought there was little or no chance that it might be overheard.

Re:PS it may still be spooky, just not illegal

[Khyber]

This doesn't violate various robocall laws?

Re:PS it may still be spooky, just not illegal

[Anubis IV]

Interesting points. The law does seem to point towards the call only qualifying for protection if any party had reason to believe their communication would be private. Google clearly has no expectation of privacy, so it’s all on the recipient of the call, in which case it depends on their circumstances.

On one end of the spectrum the salon could be in a mall with an open storefront, answering the calls from the front desk where anyone could overhear. On the other end, they may only answer calls from a back office on private property with “no recording allowed” signs posted.

Either way, it’s not a good idea for Google to make assumptions. Disclosing that they’re recording is the only way this can safely work. And even then, it may run afoul of robocall laws.

Wait, what't the problem here?

[h33t l4x0r]

If the noodle guy doesn't care then what's the issue? It sounds like he's nervous that Google employees will stop eating there because of that stupid blogger.

Please decide what to accuse Google of

[WoOS]

I am definitely no Google fanboy but maybe people could decide what to accuse Google of:
* First it was, that it was all a fake and people knew they were called by the AI.
* Now it is that it was no fake and people did not know they were called by the AI.
It appears rather difficult not to fall into one of the two categories.

Cavalier stance?

[thegarbz]

Google may have violated California law by recording the call." Friday he added that "This wouldn't send anyone to prison, but it would be a bit of an embarrassment, and would reinforce the notion that Google has a cavalier stance on privacy (and adhering to privacy laws)."

Or maybe the intent of the law in question was to protect people and their privacy and Google me the intent by removing all possible identifying information about the call. They did this to such an extent that they got accused of staging the call in the first place. So what is it? Is it fake as hell, or are we violating laws by not faking it?

It's amazing how regardless of what anyone both sides of any argument will still find a way to complain about it. Seriously some people need to get a life.

Just practice on banks, insurance companies,...

[misnohmer]

Banks, insurance companies, and other big business tend to have pre-recorded "this conversation may be recorded for quality assurance and training purposes" before you're passed to a live person. Tada, permission given for google to record for QA and training of Duplex.

Re:Just practice on banks, insurance companies,...

[Anonymous Coward]

Yes, and by Google's own comments they didn't provide that information. How do you leap at your "Tada" statement?

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:It wasn't recorded.

[TheRaven64]

It was remembered by an AI

Wonderful defence! I didn't delete the files I have a legal obligation to retain, my computer forgot them! I didn't record you illegally, my computer just remembered the video. I'm sure that will go over really well in a court.

No, they didn't break any laws.

[Hallux-F-Sinister]

Google is rich enough that laws don't apply to it. This is not how it should be, but in a country where bribery has been legalized provided you maintain the fiction that it's just a "campaign donation," and there's no clearly identifiable quid being promised in consideration of a proposed specific quo, with enough money you can do whatever you want.

The republic is dead, and I for one welcome our corporate oligarch overlords, and you would too if you were smart... because we simply have no alternative.

Complainers got to complain.

[Megol]

What is the actual problem here?

We are increasingly going to a complaint culture not because there are more problem today than in the past but because we allow ordinary people to complain on a new scale, world-wide. We encourage them even by commenting on their complaints, even if only saying we think they are acting like children.
This leads to this complaint culture: everything that can be complained about is, as people like complaining. And this leads media to hang on to this "trend" and start complaining too. Not that they in turn haven't tried to manufacture controversies since the start of their existence.

So to answer myself: the actual problem are the complainers. Those that cover up the real problems of the world in their mind-numbing noise of petty crap.

Turing Test

[Anonymous Coward]

Is everyone else here missing that the Turing Test has been at least partially solved? Google has AI that humans cannot distinguish from real people (in limited interaction).

If the other party thinks so too, yes

[raymorris]

Yes, if all parties agree with you that they can reasonably expect someone might be listening.

Only weird because it's a lot of words

[raymorris]

"You shouldn't record confidential conversations" doesn't seem that weird, does it? Or "don't record people's secrets".

How about "Don't invade people's privacy. Someone preaching on a street corner isn't talking in privacy".

Yeah any time law considers intent it can bring up questions, on the other hand my 3yo can distinguish between someone telling her a secret and someone making an announcement.

TCPA applies to solicitors. And doctors' offices

[raymorris]

The main robocall legislation is the Telephone Consumer Protection Act, signed by President Bush in 1991. It generally applies to people trying to sell something. Here are the relevant FCC regulations:

https://apps.fcc.gov/edocs_pub...

The FTC also has some regulations based on TCPA, but again that's for solicitors.

Besides calls from solicitors, TCPA also restricts automated calls to hospitals, emergency rooms, and doctors' offices. So it may technically be illegal to use Google Assistant to schedule an appointment with a doctor. I don't think it violates the spirit of the law, though, as the law was intended to protect people from receiving unwanted, nuisance bulk calls. So long as Google Assistant does a reasonably good job, it's not a nuisance call.

Re:Move business to Texas

[PPH]

So lets say I make a reservation at a local restaurant in California (two party notification state) but I do so through an AI hosted in a one party notification state (like Texas). Who' s laws apply?

But but ...

[hcs_$reboot]

When was the law written? When was that smart AI tool created?