Privacy Commissioner Says Investigation Into Kmart and Bunnings Facial Recognition Tech Will Be Complete… Soon

Privacy Commissioner Says Investigation Into Kmart and Bunnings Facial Recognition Tech Will Be Complete… Soon

In mid-June, we reported that Kmart, Bunnings Warehouse and The Good Guys were all using facial recognition technology in-store after consumer advocacy group Choice revealed the companies were all recording customers’ faceprints, mostly without their knowledge.

At the time of Choice’s report, The Good Guys told Gizmodo Australia it was trialling a new CCTV system in two stores that can use face and feature recognition technology. However, The Good Guys quickly shifted gears. It announced it was temporarily stopping the use of facial recognition technology.

Choice said this was “an important step in the right direction” for The Good Guys.

“Meanwhile, Bunnings and Kmart are lagging behind when it comes to any kind of commitment to stop the unethical and unnecessary use of facial recognition technology in their stores,” Choice senior campaigns and policy advisor Amy Pereira said at the time.

“We urge Kmart and Bunnings to reflect on the announcement made yesterday by The Good Guys, and ask them to end their use of facial recognition technology in store.”

Then, in mid-July, Australia’s Privacy Commissioner announced she had opened an investigation into Kmart and Bunnings.

Kmart didn’t reply to Gizmodo Australia’s request for comment at the time, but Bunnings said it only used the tech to help identify persons of interest who have previously been involved in incidents of concern in its stores. It told us at the time it was disappointed by Choice’s “inaccurate characterisation” of how it’s using facial recognition. It also told Electronic Frontiers Australia (EFA) that it was “comfortable” that its use of facial recognition is “undertaken in accordance with the requirements of the Privacy Act”.

The Office of the Australian Information Commissioner (OAIC) wasn’t so sure.

Specifically, the OAIC announced it had opened investigations into the personal information handling practices of Bunnings Group Limited and Kmart Australia Limited, focusing on the companies’ use of facial recognition technology.

At the time, the OAIC made a statement declaring retailers must comply with privacy laws, but up until now, the OAIC had maintained it had “no further comment” on the investigation. On Monday night, Australian Privacy Commissioner Angelene Falk provided an update.

She told Senate Estimates that the investigations into both Kmart and Bunnings are “substantially progressed”.

“They have not yet concluded, but they are substantially progressed. Bunnings and Kmart have had an opportunity to provide submissions and have done so, and the process is continuing, but I anticipate that it should be concluded in the coming months,” Falk said.

In discussing the timeframe for when we can expect a decision to be made, Falk said the OAIC aims to resolve all commissioner-initiated investigations in a “timely manner”.

“Our KPI is 80 per cent within 12 months – that has been a challenge for us as the kinds of investigations we’re now undertaking are more complex – but in relation to this matter, I would expect that it could be resolved this financial year,” she said.

Regarding The Good Guys, Falk said inquiries did not proceed to investigation because the retailer suspended its use of facial recognition technology and indicated that it wasn’t going to reinstate it.

Asked if Kmart and Bunnings breached Australian privacy laws with their use of facial recognition technology, Falk said that’s what the investigation was all about.

“This is the very issue that’s being traversed in the investigations of Kmart and Bunnings and the use of facial recognition technology is of concern, in that it is an impact on privacy,” Falk said.

“In terms of the Privacy Act, it should only be used where it’s reasonably necessary for the entity’s functions and activities and it’s that issue of proportionality that we’re investigating in these matters.”

Falk previously noted that the Privacy Act generally requires retailers to only collect sensitive biometric information if it’s reasonably necessary for their functions or activities, and where they have clear consent.

“While deterring theft and creating a safe environment are important goals, using high privacy impact technologies in stores carries significant privacy risks. Retailers need to be able to demonstrate that it is a proportionate response to collect the facial templates of all of their customers coming into their stores for this purpose,” she said.

Back in July, The Guardian was reporting that both Bunnings and Kmart had halted their use of the tech. Bunnings managing director Mike Schneider confirmed an AFR report with The Guardian that said the company had informed the OAIC it had stopped using the tech. A spokesperson for Kmart also confirmed it had paused its facial recognition tech use.

As for the submissions made to the OAIC from Kmart and Bunnings, Gizmodo Australia has asked for copies, but it’s unlikely they’ll be made available.

This article has been updated since it was first published.


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