Between June 2020 and August 2021, 7-Eleven had in-store tablets collecting survey information related to the in-store experience at all 700 stores around Australia.
During the collection of survey data, the tablets would collect a facial image ostensibly to confirm the validity of responses and to reject duplicates. The intention was also to gain a broad understanding of the demographic profile of those who completed the survey.
According to the news release, Australian Information Commissioner and Privacy Commissioner Angelene Falk said, "found the facial images and faceprints were sensitive information covered by additional protections under the Privacy Act 1988 because they were 'biometric information that was used for the purpose of automated biometric identification', and the faceprints were also 'biometric templates'.
"Biometric information is unique to an individual and cannot normally be changed," Commissioner Falk said.
"Entities must carefully consider whether they need to collect this sensitive personal information, and whether the privacy impacts are proportional to achieving the entity's legitimate functions or activities."
The release also states, "Commissioner Falk found that individuals did not give either express or implied consent to the collection of their facial images or faceprints, nor did 7-Eleven take reasonable steps to notify individuals of the collection of personal information."
In its defence, 7-Eleven pointed to the entry-door signs indicating that anyone on the premises may be subject to video surveillance and facial recognition. However, in the view of the OAIC, the accompanying images that clearly represented typical surveillance video cameras did not make an adequate connection to the tablets. In addition, there was no signage in the immediate area of the tablets that was particular to any privacy implications.
During the time of the facial data collection, approximately 1.6M records were stored. It is unknown how many additional submissions were rejected as the company contracted to install the tablets and process the surveys only provided 'cleansed' data to 7-Eleven. The collection of facial images was stopped soon after OAIC made enquiries.
The formal findings were that 7-Eleven…
- Collected sensitive information in breach of Australian Privacy Principle 3.3, in circumstances where the collection was not reasonably necessary for its functions and activities, and 7-Eleven had not obtained valid consent.
- Did not take reasonable steps to notify individuals about the facts and circumstances of collection, or the purpose of collecting their facial images and faceprints through the customer feedback mechanism, in breach of Australian Privacy Principle 5.1.
According to the full decision, 7-Eleven is required to "destroy, or cause to be destroyed, all faceprints that it has collected through the customer feedback mechanism, in breach of APPs 3.3 and 5."
No penalty, nothing.
Since the biometric data, in addition to removing duplicates (only on the same tablet within a 20-hour period) was also used to generate demographic profiles, iTWire must ask why this derived data was not also flagged for destruction. US TV crime shows often use the phrase "fruit from a poisoned tree" to indicate that subsequent use or action after an incorrect action cannot be relied upon, and we believe this is an appropriate analogy.
This report is based entirely on the public documents provided by the OAIC today; we have contacted the company for additional information. In particular, we are interested in the level of authority that approved this project (they have board-level committees for both Risk and for Audit and Compliance - both ought to have been required to approve this).
In addition we would like 7-Eleven to confirm the widely reported assertion that the company contracted to install the tablets and record the data was rate it.
Update: we received a statement from 7-Eleven. Unfortunately this does not address the level of authority at which the project was approved.
According to a spokesperson for 7-Eleven:
“7-Eleven accepts the Commissioner’s determination.
"The determination relates to a feedback system that is used by many businesses across the retail sector. The system asked customers to complete a survey about their in store experience. The survey was entirely voluntary and did not require the customer to provide any personal details like their name or contact information. The information collected through the survey was used solely to improve our products and services in store.
"The feedback system was designed to take a photograph of each customer who completed the survey in order to automatically identify and filter out non-genuine responses by the same person repeatedly completing the survey in a short space of time. On being notified of the Commissioner’s findings, we promptly disabled this feature and all images taken by the system in our stores have been permanently deleted.
"7-Eleven appreciates the Commissioner’s recognition of 7-Eleven’s co-operation throughout the investigation process, as well as her confirmation that the matter is now closed without any further action required.”