Facial recognition technology and the Right of Publicity: Could this hot tech trend violate state laws?

If someone uses a photograph of your face for commercial purposes they could be breaking the law. In an odd way, this statement connects two areas of my life, information security and movie making. Photographs of faces are used in some security systems and lots of movies. When you make a movie it is standard procedure to ask permission to use a person's picture. You record that permission with an "Image Release" that is signed by the person, or their guardian if they are under 18. Here is part of a standard release like the one we used for our movie:

"I grant permission to The Movie and its producers, to take and use visual/audio images of me for their production. The images may be used in any manner or media such as publication, promotions, broadcasts, advertisements, posters and theater or home video distribution. I wave any right to inspect or approve the finished images...I release The Movie and its producers and agents...from any claims, damages, or liability which I may ever have in connection with the taking of and use of the images or printed material used with the images."

The reason for such broad language is the breadth of a legal right with which many Americans are not familiar: The Right of Publicity or RoP. Now might be a good time for venture capitalists and Silicon Valley engineers to familiarize themselves with RoP. Why? Consider what my good friend and colleague Cameron Camp recently wrote about over on the ESET Threat Blog: the use of facial recognition for commercial purposes. Cameron provided some interesting commentary on a startup venture that had the following idea, something that might sound like a cool marketing ploy but which might also be, as I will argue, illegal:

Networked cameras in shops scan the faces of customers and try to match them with faces of Facebook users who have signed up for special deals.

At first blush this sounds like an automated version of my brother's butcher. The analogy goes like this: My brother works from home so he tends to be the one cooking dinner and, because he and his wife like to live in small villages in Europe, he buys the meat for those meals fresh, almost every day of the week, not in a weekly trek to a big supermarket. So my brother gets to know his local butcher and the local butcher rewards local customers with special deals, made on the spur of the moment, based on a form of facial recognition that I like to call: "Hi Mike, how's it going?"

The problem with the computerized version is that having your picture taken by a digital camera is a lot different from your local butcher memorizing your face in his brain. Transferring that digital image over the public Internet to a vast server farm that might be thousands of miles away, possibly in a different country, introduces concerns way beyond any misgivings you might have about the butcher remembering your face. Consider what has to happen to reward people who have opted in to this facial-deal scheme:

1. Take a picture of every customer.


2. Isolate the face within each image and send to a server which can scan it against a database of known faces belonging to people who have opted in.


3. Return a result when there is a match.

In other words, you are photographing people in such a way that their identity is clear, then using those photographs for commercial purposes (specifically deciding who gets a particular deal but in general promoting your business so it is more appealing than your competition). Now consider this piece of law, on the books since 1903, namely Article 5, Section 50 of New York State Consolidated Laws:

Sec. 50. Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

I know this statute is labeled "Right of privacy" but lawyers assure us it is the basis of the Right of Publicity. The key words are: Uses the picture of any living person for the purposes of trade.

So, if you design a facial recognition deal scheme based on photographing everyone, regardless of permission, in order to pick out specific individuals who have given permission, you would seem to be violating this law and the Right of Publicity, which is enshrined in many state statutes, as described on the Right of Publicity website, rightofpublicity.com:

As of this writing, nineteen states recognize the Right of Publicity via statute (California, Florida, Indiana, Illinois, Kentucky, Massachusetts, New York, Nebraska, Nevada, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin). The majority view is that the right exists by common law in every state that has not defined its position through legislation. The American Law Institute’s Third Restatement of Unfair Competition (1995) §46 also recognizes the Right of Publicity as a distinct and viable legal theory.

I don't want this blog post to come across as an attack on a particular startup or technology, but I do note that one of the states in the above list is Tennessee, which is where the startup described by Cameron is located. One might argue that the Right of Publicity is more widely known in Tennessee than some other states because Tennessee law extends the right to deceased persons, Elvis Presley being the most frequently cited example. Unfortunately, this emphasis on celebrity cases leads some people to assume that only celebrities have a Right of Publicity but this is not the case. Numerous states have made this quite clear: You don't have to be famous for use of your face, without permission, for commercial purposes, to be against the law.

Facial recognition technology is currently hotter than hot in VC and startup circles, partly driven by Facebook's massive accumulation of facial data (it reportedly scans 300 million photos a day for faces). The hottness of facial recognition seems to have increased of late despite the fears expressed by privacy advocates. Yet I don't hear many people loudly proclaiming that commercial facial recognition, through its requirement that non-opt-in faces be checked for opted-in faces, violates the Right of Publicity. (There are some instances of people raising aspects of this point: Tim Bukher, Derek Bambauer, and hopefully it was considered at the FTC forum on the topic.)

Of course, I need to put the standard disclaimer out there: I am not a lawyer. On the other hand I have spent 25 years thinking hard about the spaces where privacy, security, and technology intersect. I have also started several successful companies and produced an award-winning movie. While it is entirely possible that I am missing something that invalidates my argument, I have a strong hunch that some forms of facial recognition violate the Right of Publicity.

(Unless someone points out a big hole in my argument I will try to write more about this topic when I get time, perhaps looking at how facial recognition in a commercial security system is affected by RoP, but my immediate task is to review the terms and conditions over on Facebook to make sure they include, as I suspect they do, permission to use my face for commercial purposes--I'm sure the lawyers at Facebook took heed of RoP, right?)

Paying Forward: Giving a little back while we do the paperwork

Why so quiet here on Cobbsblog? To be honest I took the month of July to recover from our medical nightmare in June. But now I'm back and working on paying back a little if I can. My decision to document my wife's atrocious treatment had mixed results but many of them were favorable. We got a lot of good advice and good wishes from friends (THANKS friends!).

We persuaded our healthcare provider to provide us with a better doctor and the treatment since then has been excellent. However, the task of documenting what went wrong in order to help prevent it happening to someone else has proved daunting. Chey has been working on that, on days when she feels able, which are more frequent than they used to be but still far from 7/7. And of course, I have a full time job, which has been more than full time the last few months as I worked nights and weekends to complete a short video for one of ESET's causes: Securing Our eCity. (If you check that link you will see a player for the video, or you can watch it on YouTube in HD...go full-screen and crank up the volume...it is an ad for an upcoming information conference, styled as a movie trailer.)

But what to do about healthcare? I decided to put some time in to hemochromatosis awareness, mainly by perking up the Facebook Hemochromatosis page. This needed work anyway, due to Facebook's latest round of design changes, and the page is worthy of attention. Frankly, this page is a living testament to people coping with one of our country's least recognized medical conditions. Lost amid the deafening roar of political rhetoric about healthcare costs, the simple truth is that our country could save a ton of money if it improved early detection and proper treatment of this major cause of diabetes, heart disease, liver disease, and joint replacements. Heck, the treatment of hereditary hemochromatosis can actually pay for itself! Harvesting the blood taken from HH phlebotomies would boost the nation's blood supply considerably, saving millions of dollars.

I'm also trying to cook something special up for next month when I will reprise my post on hemo-pause and explain how America's baby-boomers can save themselves a lot of pain and suffering. In the meantime, here are some of the past articles on hemochromatosis and links to two of my favorite hemochromatosis sites:

• Iron Disorders Institute


• Celtic Curse

The Rich Guy's Maserati GranTurismo by Pininfarina

For me, born and raised among some of the great automobile marques, one of the pleasures of living in Little Italy, a neighborhood within San Diego, is observing some excellent automobile designs up close. I do this while walking the dog or walking to the coffee shop or walking to work. In fact, walking is a great way to see cars, especially when they are parked. Which is how I came upon this beauty:


As many cars fans will immediately know from the distinctive trident emblem on the grille, this is a Maserati (the current Maserati GranTurismo to be more precise). Ask any automotive design aficionado which design house came up with this look and they are likely to say, without any additional data: Pininfarina. And they would be right. So who would own such a car without knowing that? Apparently the guy who owns this car.

While I was admiring this superb piece of automotive styling a man walked across the street making a b-line for the car and I asked him: "Yours?" He replied that it was. "Beautiful car," I said. He agreed. "One would expect no less from Pininfarina," I said. To which he responded "Huh?" Fearing it was my accent that confused the man, who was now standing by the driver side door, I explained: "Pininfarina design, always outstanding." I nodded toward the classic logo spelling out the name between the wheel arch and the door:



To which he replied: "I thought that had something to do with the rims." And he wasn't wrong, because the design of the wheels on this model does echo the trident emblem, repeated three times, but he clearly had no clue that Pininfarina designed the entire look of his car, or that Pininfarina is a legend in automotive design. Here's Wikipedia:

Founded as Società anonima Carrozzeria Pinin Farina in 1930 by automobile designer and builder Battista "Pinin" Farina, Pininfarina has been employed by a wide variety of high-end automobile manufacturers, including Ferrari, Maserati, Rolls-Royce, Cadillac, Jaguar, Volvo, Alfa Romeo,Honda, Fiat, Peugeot and Lancia. It also has designed trams in France and Greece, high-speed trains in Holland, and trolleys in the USA. Since the 1980s Pininfarina has been consulted on industrial and interior design.

I might not be able to afford a Maserati, and frankly I don't need a Maserati, what with all the walking and public transportation, and cheap pay-as-you electric cars parked all around. However, I would like to think that people who can afford a six figure car at least have some idea of where it came from, but apparently that is not always the case. Sigh...

Rural broadband content links

A few recent links to useful content about broadband service outside the standard ISP model.

A session about cheap, fast service on Blog Talk Radio.

An article about funding community broadband.

Lots of good material at Community Broadband Networks.

As some readers may know, I am moving to the city and will not be so closely involved with rural broadband in the future. But I still think the future for rural communities lies with broadband.

And on the seventh day: Relief, rest, and ruminations on responsibility

If my wife's pain relief nightmare began on Wednesday of last week, then the seventh day of that nightmare was yesterday. I am thankful to report that the day went well and the nightmare may now be over, although it wasn't actually a nightmare, it was a reality, one we had to live through, and doing that burned a lot of energy. So I decided to rest my blog on the seventh day and just use Twitter and Facebook to let people know the good news: Chey now has a doctor who cares!

The new doctor seems to be just what a doctor should be: she is compassionate, a good listener, a good communicator, thorough, knowledgeable, and able to acknowledge, as we all must do, the limits of our current knowledge, as well as a willingness to further expand our knowledge. Of course, the relief that comes with this news is tempered by the indignity and distress experienced in getting to this point.

But the bright side is still bright: Chey now has an improved regimen of pain medication and NO pain contract. (I decided to celebrate with a photo of Chey smiling, from the front page of the local newspaper in Alice Springs, Australia, where she was preparing to take part in the Finke Race 2000).

Something great about Chey's new doctor? She is not a fan of pain contracts. In fact, if you find yourself looking for a doctor, perhaps after moving to a new city like we did, a good tip is to ask any prospective doctor: What do you think of pain contracts? If the doctor agrees with Dr. Kevin Pho that pain contracts threaten the doctor-patient relationship, then you probably have a winner (but no, Dr. Pho is not our new doc).

Finally connecting with a good doctor yesterday was such a reversal of medical fortunes that both Chey and I are suffering from a sort of psychological whiplash. We will take a few days to recover, but then it will be time to move on to post-crisis analysis and lessons learned. Perhaps the biggest question to answer is: Why did things go so horribly wrong? Who was responsible? If we can answer that we may be able to save other people from a similar fate.

Talking of responsibility, I do feel obliged to keep spreading the word about some of the nasty things this incident brought to light, like pain contracts. Expect a blog post on the topic later this month delving into questions like:

• Are they legal?


• What should they include to protect you, the patient?


• How to add a clause that protects you?

Let me close with another big THANK YOU to everyone who expressed support for Chey and outrage over her mistreatment. We will try to do what we can to inform others and prevent this from happening to anyone else.

Why day 6 is really day 3355 in Chey Cobb's chronic pain management nightmare

Day 6 and we are keeping hope alive (despite day one, day two, day three, day four, and day five). In a moment I will explain why day 6 this is more like day 3355, but first an update. As the saying goes: My wife is resting uncomfortably. She has an appointment with a new doctor on Wednesday and, eternal optimists that we are, we are looking forward to that.

You pretty much have to be an optimist to live through years of chronic pain as my wife has done. Sometimes hope is all you have to go on; hope of relief, hope of achieving management of your pain at levels that make life livable.

Chey's 50th birthday was 3,355 days ago and she was in pain that day. I remember because I baked a Baked Alaska and she only had a very small slice even though I did a pretty decent job of it (the Baked Alaska was to go with her present: passage for two on an 80-foot fishing trawler sailing from Sitka in Alaska to Seattle).

On that trip, in September of 2003, Chey had yet another really painful migraine. When we got back home she had a bad reaction to a seizure medication they sometimes prescribe for migraine. It is hard to remember any pain-free times since then.

Sadly, there is growing evidence that chronic pain is not only painful, but also life-threatening. We read on Web MD that Severe Chronic Pain Lowers Life Expectancy. The article states:

Previous research has demonstrated a clearly negative influence of chronic pain on health. Now, a new study portrays a profound link between severe chronic pain and death; inflicting nearly a 70% greater mortality risk than even cardiovascular disease.

The study indicates that even after you adjust for sociodemographic factors and the effects of long-term illness, "patients with severe chronic pain had a 49% greater risk of death compared with all-cause mortality and a 68% greater risk of death compared with all cardiovascular-disease-related deaths."

I appreciate that the author of the article agreed with me that "The most critical information to take away from this research is that withholding appropriate pain medication is a virtual death sentence." In other words, this means that doctors who "don't believe in" using narcotic pain medication "are sentencing some of their patients to an early death."

Now, put this in the context of my wife's recent experience, being cut off from pain medication for seeking more medication. The author writes:

"families and friends of severe chronic pain patients must never try to dissuade the patient from using all appropriate treatments and medications to reduce pain. Convincing such a patient to avoid narcotics, if and when they are appropriate, is equivalent to pushing them into an early grave. Instead, physicians and families must encourage the chronic pain patient to employ each and every possible treatment, including comprehensive pain management programs and powerful pain medications. It is no longer a matter of making someone more comfortable. It's a matter of life and death."

The referenced article is: Torrance N, Elliott AM, Lee AJ, Smith BH. Severe chronic pain is associated with increased 10 year mortality. A cohort record linkage study. Eur J Pain. 2010(Apr);14(4):380-386. As the author of the WebMD item notes, this new research is comprehensive, vetted and validated. There is a link to the abstract here: http://updates.pain-topics.org/2010/04/severe-chronic-pain-is-killer-study.html

If you would like a copy of the full article, leave a note in the Comment field and I will see what I can do.

Day 5: Why not palpate and evaluate?

Chey is feeling slightly better today as the Ativan they gave her in the psych ward wears off. Still lots of pain and some slurred speech. As of 4PM nobody from Sharp HealthCare has been in touch. AFAIK, their patient advocate delivered his report at 1PM today in the full knowledge of how badly Chey has been treated by Sharp so far.

Again I want to thank the folks from around the world who have expressed moral support for Chey. In particular I want to thank fellow veteran IT writer Mark Gibbs for shining light on the situation in his Forbes blog.

Why Not Palpate and Evaluate?

As I sit and wait for calls to be returned I get a chance to replay events of the past few days and new questions come to light, like: "Why did nobody at the hospital palpate Chey?" Okay, that sounds a bit weird if you don't know that palpate is the medical term for pressing on the patient's body (like many people I sometimes misspeak the word as palpitate).

A good doctor can tell a lot by probing major internal organs this way, as well as getting tactile feedback, i.e. patient response to touch. One of the first Google results I found on the subject describes how you would examine someone with musco-skeletal problems like Chey. You don't have to touch Chey much to tell she is in a lot of pain, yet nobody seems to have tried that.

Of course, pain is a hard thing to quantify. Different people have different tolerances for pain. For example, Chey can pick up hot things that I can't bear to touch. Is she a Spartan? Am I a wimp? Is there a way to evaluate this stuff?

Yes, there are several ways to arrive at a measure of pain, or the effect of pain. Here is the US English version of the 24 point version of the Roland-Morris disability questionnaire from MAPI, an organization that seems to focus on quality of life measurements and standards:

When your back hurts, you may find it difficult to do some of the things you normally do. This list contains some sentences that people have used to describe themselves when they have back pain. When you read them, you may find that some stand out because they describe you today. As you read the list, think of yourself today. When you read a sentence that describes you today, mark the box next to it. If the sentence does not describe you, then leave the space blank and go on to the next one. Remember, only mark the sentence if you are sure that it describes you today.

1. I stay at home most of the time because of the pain in my back.


2. I change position frequently to try and make my back comfortable.


3. I walk more slowly than usual because of the pain in my back.


4. Because of the pain in my back, I am not doing any of the jobs that I usually do around the house.


5. Because of the pain in my back, I use a handrail to get upstairs.


6. Because of the pain in my back, I lie down to rest more often.


7. Because of the pain in my back, I have to hold on to something to get out of a reclining chair.


8. Because of the pain in my back, I ask other people to do things for me.


9. I get dressed more slowly than usual because of the pain in my back.


10. I only stand up for short periods of time because of the pain in my back.


11. Because of the pain in my back, I try not to bend or kneel down.


12. I find it difficult to get out of a chair because of the pain in my back.


13. My back hurts most of the time.


14. I find it difficult to turn over in bed because of the pain in my back.


15. My appetite is not very good because of the pain in my back.


16. I have trouble putting on my socks (or stockings) because of the pain in my back.


17. I only walk short distances because of the pain in my back.


18. I sleep less because of the pain in my back.


19. Because of the pain in my back, I get dressed with help from someone else.


20. I sit down for most of the day because of the pain in my back.


21. I avoid heavy jobs around the house because of the pain in my back.


22. Because of the pain in my back, I am more irritable and bad tempered with people.


23. Because of the pain in my back, I go upstairs more slowly than usual.


24. I stay in bed most of the time because of the pain in my back.

Okay, so Chey's responses to this assessment today are Yes to every question except 19 and I would say 19 is only No because she is stubborn and refuses my help. Note that 20 and 24 are a bit tricky. Does Chey stay in bed all day? No, but she could be said to spend most of the time in bed, and when she gets up and moves to the sofa she mainly reclines on it, she does not really sit on it for long.

If, during this whole ordeal of questioning her need for pain relief, someone had used this assessment on Chey they might have understood how much pain she was in. Of course, they also could have looked at her medical records and the scans that show some pretty brutal spinal anomalies, but hey, what do I know, I'm not a doctor. Or should that be: "Hey, what do I care, I'm just a doctor."

Update: At 5pm I got a call from the patient advocate at Sharp that might be the start of a solution. Will have to see what tomorrow brings.