MARY LOUISE KELLY, HOST:
I spent a few minutes today doing something millions of Americans have done in recent days - trying out the Google Arts and Culture app.
Here we go. Take a selfie and search thousands of artworks to see if any look like you. Get started. All right, three, two, one - cheese.
Yeah, so the app is just what it sounds like. You take a selfie. You get an instant match with a great work of art that is supposed to resemble you. Sometimes the result is less than flattering.
(Laughter) It actually doesn't look anything like me, so I'm going to try this one more time. Oh, I'm liking this one. This is a portrait of Thirza Whysall from the collection of the Royal College of Music painted by Elizabeth Robinson McCallum. She does have kind of wavy blonde hair. She's playing a violin. So there you go, my inner artiste is coming out.
(Laughter) OK, so that's how the app is supposed to work. Here's the thing - if I were sitting in Texas or in Illinois, I couldn't do this. The app doesn't work. Law professor Matthew Kugler of Northwestern University has studied Illinois' biometric privacy laws, and he joins us now. Welcome.
MATTHEW KUGLER: Thank you. Thank you.
KELLY: You are in Chicago right now. Explain for us what happens if you try to open the app and use the art selfie feature.
KUGLER: So what people have been discovering - and this was not publicized, they've been discovering it as they attempt to do it - is that the option is simply not available. And what has become apparent over the last two days in particular is that Google has intentionally disabled this functionality in Illinois and in Texas in response to the biometric privacy laws.
KELLY: Google has not actually put out a statement one way or the other. We're reaching out to them to see what their take on this is. But what you're describing there is biometric law in Illinois that restricts the amount of information that tech companies can collect from users like you or me.
KUGLER: Yes. So in these two states, if you want to collect those biometrics you have to give certain disclosures to people telling them what you're going to do with the information. You have to get their permission for a variety of things. And even with that there are restrictions on how you can share the information and whether you can sell it.
KELLY: Now, in this case, we looked. Google does have a disclaimer on the app. It says - and I'll quote it - "Google won't use data from your photo for any other purpose and will only store your photo for the time it takes to search for matches." And it makes you choose either I accept or, you know, don't accept and then you don't proceed. So with that disclaimer, how does the app not satisfy Illinois legal requirements?
KUGLER: My impression is that Google is showing an abundance of caution here. The law is still being litigated in a number of courts. Google is involved in litigation involving the law. And they may be concerned that someone might upload someone else's picture and therefore they don't have the consent of the person whose image is being captured. That's a problem with home security cameras. And there's a Nest product not available in Illinois as far as we can tell because of this concern.
KELLY: Nest, we should mention, is another technology company, uses biometric data for different applications. And it's owned by the same parent company as Google.
KUGLER: Yes. So I'm wondering if there's perhaps some Google-wide understanding of caution, though obviously Google has not been forthcoming explaining exactly why it's doing some of these things.
KELLY: Why was this law passed in Illinois in the first place? This was to protect privacy rights of residents there.
KUGLER: Yes. There was a company going through bankruptcy in Illinois that had a fair bit of biometric data. And as it was going through bankruptcy, there was concern that the data had been collected when consumers had certain impressions of how it was going to be used. And in bankruptcy, that data might be sold to someone else who has completely different intentions. So maybe you trust Google with certain data, but for Google to hand that data off to someone else you wouldn't trust them. So this law was passed in part to avoid that kind of unintended consequence.
KELLY: And meanwhile, to loop us back to where we began, are people in Illinois finding ways to circumvent this law?
KUGLER: Several of my friends have commented that when they travel out of state they're going to make a point to stop by the side of the road and make use of this feature (laughter). How much they care is unclear. This is perhaps the flavor of the moment, and in a week we'll all wonder why we cared.
KELLY: We'll all be moving on to being agitated about something else. Matthew Kugler, thanks very much.
KUGLER: Thank you.
KELLY: That's Matthew Kugler of the Pritzker School of Law at Northwestern University.
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