European Privacy Authorities to Investigate Facebook’s Opt Out Facial Recognition

The European Union has taken issue with the worldwide rollout of Facebook’s opt out facial recognition feature that suggests friends to tag in photos upon upload, as we predicted yesterday. Bloomberg Businessweek reports that Facebook will be the subject of a probe by the Article 29 Data Protection Working Party, a committee that advises the 27 EU nations on matters “affecting the rights and freedoms of natural persons with regard to the processing of personal data and privacy”.

We were surprised to see Facebook quietly expand the audience of the opt out feature from its initial North American user base to the rest of the world, including to Europe, which has filed wide-ranging complaints about Facebook’s privacy policies in the past. Now, Facebook may be forced to reset the feature in Europe to default to opt in, which could hamper the site’s ability to coax more photo tags out of users.

The feature “Suggest photos of me to friends” was launched in North America in December 2010. Here’s our explanation of how it works, from our post yesterday:

“When users upload photos, Facebook’s algorithms groups the photos by those with similar faces. It also suggests friends those faces may belong to by matching them with previously tagged photos of those friends, and the suggested tags are automatically applied unless removed. This speeds and simplifies the tagging process by reducing the frequency with which users are forced to type out names.”

Some users may not want their faces analyzed and identified in Facebook photos, the world’s largest collection of photographs. Facebook’s only public announcement of the wider rollout came after criticism began yesterday. It added a short update to a blog post from December about the feature and published a link the post to Facebook’s official Page when a new blog post may have been warranted. The initial silence about the expansion of the feature made it seem as if Facebook was trying to hide that it had added a new opt out privacy setting to the accounts of hundreds of millions of users.

Potential Changes to Facial Recognition Feature

Gerard Lommel, a member of the Article 29 watchdog committee said that “Tags of people on pictures should only happen based on people’s prior consent and it can’t be activated by default”, and adds that the Working Party will “clarify to Facebook that this can’t happen like this.” Ireland’s data protection authority will also examine the feature.

Facebook typically adds functionality to the site in an opt out manner because few users would take the time or have the confidence to manually enable new features. However, we recommend it pair these opt out additions with timely, prominent announcements and awareness campaigns, which it failed to do here. This may be a case where the site will have to take two steps backward, changing “Suggest photos of me to friends” to opt in, because it didn’t take a transparent step forward by more visibly notifying users outside North America of the privacy setting.

Photo tags have never required consent, other than being friends with the person doing the tagging, so that’s not likely to change. There’s a lot of potential value in facial recognition streamlining the tedious photo tagging process for users, and Lommel’s statement doesn’t appear to recognize this. This will be reduced, though, if only a portion of the users sees the photo tag suggestions because Facebook surprised much of the world with the roll out and conservative authorities react strongly.

The company’s best bet at this point may be to add a prompt, tooltip, or announcement within the site alerting users to the change. This could allow it to claim users were made aware that facial recognition had been added and enabled, perhaps swaying authorities that might otherwise demand the feature be removed or defaulted to disabled.

Facebook has historically complied with government injunctions regarding privacy and censorship. If EU and Irish authorities return with demands that the feature be changed, Facebook would likely comply, and it could embolden other government around the world to request similar alterations. This could mean that many users will continue to tag photos by hand because their government has disabled the elegant technological solution designed to assist them.

Update 6/8/2011 3:15pm PST: Facebook spokeswoman Sophy Tobias has been quoted by Reuters saying “We have noted the comments from some regulators about this [facial recognition] feature and we are providing them with additional information which we are confident will satisfy any concerns they will have,” Though Facebook has stated that it should have been”more clear with people during the roll-out process when this became available to them”, it has yet to announce any change to the feature or its privacy settings.

The last time Facebook encountered stern privacy criticism was over it allowing applications to request the phone number and home address of users. In response to the backlash, Facebook quickly disabled the capability. It later had to respond to inquiries from two members of Congress, and the option is still disabled. In contrast, Facebook appears to be holding its ground on the facial recognition issue, and may wait for formal requests from authorities before changing the feature.