In our view, the Department’s proposed changes to HIPAA regarding marketing are contrary to the law. Current law requires that paid communications for any marketing should be allowed only on an opt-in basis. We oppose the Department’s proposed regulation that would allow communications paid for by third parties who are not the entities whose product or service is being described in the communication.

The World Privacy Forum filed two sets of detailed regulatory comments on recently proposed changes to HIPAA. The first comments focused on proposed changes to HIPAA in the area of marketing patient information. The proposed changes would be harmful to patient privacy, and are contrary to the law. WPF was joined in the marketing comments by the Center for Digital Democracy, Consumer Action, Consumer Federation of America, the Electronic Frontier Foundation, Privacy Activism, Privacy Rights Clearinghouse, and Privacy Times. The second set of comments WPF filed included the comments on marketing as well as on additional provisions that would be problematic if enacted.

This 2010 WPF report, The One Way Mirror Society, explores new forms of sophisticated digital signage networks and their privacy implications in the US and other countries. Digital signage networks are being deployed widely by retailers and others in both public and private spaces. From simple people-counting sensors mounted on doorways to sophisticated facial recognition cameras mounted in flat video screens and end-cap displays, digital signage technologies are gathering increasing amounts of detailed information about consumers, their behaviors, and their characteristics.

Facial recognition technology was initially developed for security purposes, but it has found a new use in digital signage for marketing and ad targeting purposes. Essentially, the process is that a camera captures an individual’s image, then checks it against algorithms that analyze at least 80 facial characteristics, such as distance between eyes, length of the face, width of the face, depth of eye sockets, and so forth. [48] Layers of algorithms are used to crunch the facial information into determinations about a person’s age bracket, gender, and ethnicity. The next efforts are going toward coding the facial expressions of shoppers to “capture their emotional reactions to in-store environments.” [49]

Security Camera Footage: Repurposing footage for marketing and profit

Perhaps the most egregious repurposing of data is the use of security camera footage for store marketing purposes. From the industry literature, this appears to be an established business practice at this point. It is one that needs to be examined closely.