Anonymous Video Analytics' Future Uncertain After Canadian Privacy Regulators' Investigation

• Published date: 10 November 2020
• Subject Matter: Consumer Protection, Privacy, Technology, Data Protection, Consumer Law, Security
• Law Firm: Borden Ladner Gervais LLP
• Author: Ms Éloïse Gratton and Andy Nagy

On Oct. 28, 2020, the federal privacy commissioner and its provincial counterparts in Alberta and British Columbia issued joint findings with respect to the information-handling practices of a property management company using anonymous video analytics (AVA) in order to generate demographic information about consumers in its shopping centres, in a purportedly anonymized and aggregated format.

In this case, sensors were placed in digital mall directories at various shopping centres across Canada. The sensors used facial characterization technology - another name for anonymous video analytics - to extract an estimate of the age and gender of consumers within the sensor's range. Although the company argued that its use of AVA was not subject to Canadian privacy laws in that the technology did not collect personal information within the meaning of those laws, the commissioners disagreed and made a number of important findings with respect to AVA.

In light of the nature of information being collected via AVA in this instance, the commissioners concluded that express opt-in consent would be required, as they determined that some of the information involved was sensitive and its surreptitious collection in this context would be outside the reasonable expectations of consumers.

The company was advised to limit its retention of such information and to update its policies and procedures with respect to obtaining meaningful consent. Although the decision also explored the company's use of mobile device geolocation technologies, the present review focuses on the privacy commissioners' findings with respect to AVA.

Background

In a recent Report of Findings, the Office of the Privacy Commissioner of Canada, in collaboration with its counterparts from Alberta¹ and British Columbia² (collectively, Commissioners), issued a confounding decision regarding the legality of anonymous video analytics (AVA) under the federal Personal Information Protection and Electronic Documents Act and substantially similar private sector privacy laws in Alberta and British Columbia (collectively, Canadian privacy laws). This decision potentially upends the use of a relatively novel technology that many considered privacy-preserving.³

The Commissioners launched a joint investigation into the property management company's information-handling practices, following a number of media reports of consumers' personal information being collected without their knowledge or consent at malls across Canada via sensor-equipped wayfinding directories, i.e., interactive digital maps.

The investigation revealed that the sensors had collected and used images of faces (images), which had been converted into unique numerical representations of those faces (numerical representations of facial features) in order to generate information about the approximate age and gender of consumers (demographic data).

However, the company argued that the AVA technology used - which was installed and managed by a service provider - did not result in any collection, use or disclosure of "personal information" within the meaning of Canadian privacy laws. Rather, the company said, the information collected from the sensor was anonymized, meaning it could not be used, alone or in combination with other information, to identify an individual. As it was not collecting any personal information via AVA, the company argued that it was not required to comply with notice and consent requirements.

What are anonymous video analytics, or AVA?

AVA is a type of technology that aims to generate valuable insights about on-site consumers - such as an approximation of their age, gender and even emotional state relative to a particular digital display - in an anonymized and aggregated format using face pattern detection algorithms to scan real-time video feeds.⁴

Unlike facial recognition, which creates a template of an individual's physical or behavioural characteristics for authentication or identification purposes, AVA is not meant to identify or authenticate individuals, meaning that images collected via AVA are generally processed locally and retained for a very short period (if at all). In theory, no unique, persistent template of an individual's facial features is created or preserved.⁵ Given these notable distinctions, AVA is referred to as "facial detection" or "facial characterization." It is often mistaken as a form of surveillance or biometric system, though, as it relies on biometric characteristics and uses similar hardware.⁶

While its use extends beyond the confines of the retail industry, AVA is increasingly associated with the traditional brick-and-mortar store, especially as it seeks to reinvent itself in an effort to compete with e-commerce, a sector that has seen tremendous growth at the expense of traditional retailers.

The unabated rise of e-commerce may be attributed, at least in part, to the online industry's ability to leverage various information-gathering and tracking tools in order to target advertisements to their audience and tailor the shopping experience of consumers, generating valuable metrics along the way. AVA emerged as the "offline" retail industry's response to an increasingly lopsided affair, promising to correct the informational imbalance between brick-and-mortar and online stores. More specifically, AVA is used to produce various consumer metrics in real time, which can be leveraged to create a more frictionless shopping experience, improve product management and business decisions, and measure engagement with visual communications and displays, all while promising to better preserve the privacy of consumers through a "privacy by design" approach.⁷

Decision

The Commissioners' decision relied on a number of key findings with respect to the particular features of the AVA technology used in this instance, the type of information collected and the duration of retention of such information by the service provider. Although the decision also considered these questions with respect to information collected during the pilot phase of the AVA initiative, the present analysis focuses on the company's subsequent rollout of AVA at its malls.

At the outset of their decision, the Commissioners noted that the AVA technology used in this case did not work "entirely in real time" and required images to be collected and stored in memory, albeit for "a...