By: Lauren Liu

We have all experienced that shocking moment when we realized that the advertisement or post appearing on our screen happens to be the exact topic that we talked about in a very private conversation. Although we did not Google or browse that topic on the internet, somehow, that idea of upgrading our laptop or buying that new pair of shoes slipped into our browser and started waving at us from across the screen. We are in awe, and can even feel violated.

Such an experience has become so common that we forget how much our browser or the apps that we use are tracking us, and how much our cellphones are listening in on our every conversation. Especially after the revelations from Thomas le Bonniec, a former contract consultant for Apple, such an issue has raised more concerns for customers. According to Bonniec, Apple created a quagmire for itself involving many ethical and legal issues, including Siri’s eavesdropping. In many instances, iPhones record users’ private conversations without their awareness of it, and without any activation of Siri, which listens to users’ vocal commands and assists with their needs. The problem stems from the fact that every smartphone, including iPhone and Android devices, is a sophisticated tracking device with very sensitive microphones that can capture audio by the users, or even anyone within the vicinity. Furthermore, with 4G LTE and its bandwidth, these recordings can be stored and uploaded into the seller’s database without the knowledge or consent of the owner. Bonniec mentioned Apple’s explanation that these recordings were gathered into Apple’s database for analytics and transcription improvements. However, Bonniec’s revelation of Apple’s internal operation still caused many privacy concerns from customers and raised potential legal issues. 

In response to such concerns, companies created long consent forms for customers to sign before purchasing the product. The legal definition of consent is that a person with sufficient mental capacity and understanding of the situation voluntarily and willfully agrees to a proposition. Based on such a definition, a majority of customers could not have validly consented, because when most of them sign these consent forms, they do not read or fully understand the content in these forms. More specifically, regarding the problem of Siri, customers often do not clearly understand what Siri listens to or how their iPhones record their conversations. Most ordinary iPhone users often assume that Apple only evaluates voice commands and questions after they activate Siri for specific commands. 

Federal law (18 U.S.C. § 2511) requires one-party consent, which means that a person can record a phone call or conversation, so long as that person is a party to the conversation. If a person is not a party to the conversation, he or she can only record if at least one party consents and has full knowledge that the communication is being recorded. Most state laws follow such federal laws. It remains a question whether or not Apple or Siri should be legally considered a party to a conversation, but based on common sense, most consumers would likely think that it is not. Furthermore, it remains unclear whether or not the signing of a consent form without a comprehensive understanding of the form’s content is considered valid consent. Thus, even if a customer signs such a consent form, it remains possible that he or she still does not consent to be recorded.

In addition to learning about the law, consumers should also ask questions regarding potentially illegal recordings by electronic devices. How much private information is obtained? What confidentiality agreements were in place, and what oversight was implemented? Are actual audio recordings retained, and if so, for how long? With so much ambiguity still remaining, these questions can at least begin the process of addressing consumers’ concerns and reducing potential legal disputes for sellers.