There have been a number of previous denials from Oculus saying that they’re not sharing data with Facebook yet, but there is actually nothing in the privacy policy that prevents this sharing from happening. For example, in Oculus’ response to Al Franken’s question as to whether Oculus is sharing information with third parties including its related companies they said, “Oculus does not currently share location information with third parties or related companies.” Their privacy policy certainly allows this sharing to happen at any moment, and so Oculus is basically just saying that they’re not sharing this data yet, as of the date of the response.
In response to data collection privacy concerns last year Oculus said, “Facebook owns Oculus and helps run some Oculus services, such as elements of our infrastructure, but we’re not sharing information with Facebook at this time. We don’t have advertising yet and Facebook is not using Oculus data for advertising – though these are things we may consider in the future.” Again, Oculus is diverting attention from what their privacy policy already allows by emphasizing what they’re not doing, yet.
It’s almost as if Oculus is using their perceived operational independence from Facebook as a compartmentalized buffer to divert any focus on what their privacy policy is already enabling. Making statements that access to VR data streams haven’t been turned on yet do not carry much legal weight when there’s absolutely nothing stopping them from being turned on at any moment.
For example, Oculus’ privacy policy says “When you post, share or communicate with other Oculus users on our Services, we receive and store those communications.” Oculus responded to Franken that “VoIP communications are not being recorded.” But the real question is does Oculus’ privacy policy enable Facebook to start recording VoIP at any moment? Does Facebook/Oculus mean “we’re not recording VoIP yet“? Or do they mean “we never intend on recording VoIP because we would never do that?” They did not make a strong statement that they would never record VoIP, and so I have to assume that any time that I communicate with anyone on Oculus’ services that this data could be captured, stored, transcribed, shared with Facebook, tied to my personal identity, combined with information from commercial third parties in order to create a Facebook’s super profile to sell me ads either on Facebook or eventually on Oculus’ services.
In a candid moment, Mitchell told me:
“There are a lot of potential pitfalls over the future of VR and AR around user privacy. There’s never been a technology that brings so much of you into the experience, which is sort of that double-edged sword that’s the power of VR. But yeah, used in the wrong way or in the wrong hands, you can be tracked probably more than you would normally expect to be. Right? And I think that that’s only going to become more and more important as we develop new technologies that bring even more of you into the experience. And users are going to want to know and understand what’s actually happening under the hood.”
The problem with Oculus’ privacy policy is that it already provides Facebook a lot of leverage to capture and track a lot of information about you, “probably more than you would normally expect to be,” from just these two provisions of “information about your physical movements” as well as “information about your interactions with our Services, like information about the games, content, apps or other experiences you interact with, and information collected in or through cookies, local storage, pixels, and similar technologies.” This could already include head gaze, what you’re looking at, what you’re interacting with, and what interests you. These data streams could already be recorded and be sent to Facebook.
Oculus says that they’re using 60-second averages of physical movement data to debug their tracking. Mitchell said, “Almost any of the live tracking we’re doing, almost all of it, is all really diagnostics focused. So if there’s a problem with your hardware, like a batch of hardware for example, we want to know that so that we can deliver a high-quality experience, and make sure that if there’s an issue with your system and reach into support, you can send us logs. And we can say, “Hey, clearly there’s a problem the Rift sensor” or something like that.”
Oculus is clearly using this data to debug and improve their technology, but it’s unclear whether Facebook could use this “physical movements” provision in order to record all sorts of eye movements, facial movements, and potentially more biometric data in the future. It’s a vague enough provision to potentially allow Facebook to capture a whole range of biometric data including eye tracking, galvanic skin response, heart rate and heart rate variability with ECG, muscle tension & facial expressions with EMG, and brain waves with EEG. This type of biometric data is usually gathered within a medical context protected by HIPAA or a marketing research context with explicit consent and privacy protections.
It’s also problematic that Oculus’ privacy policy is recording all of this data, tying it back to your personal identity, and storing it forever. The third-party doctrine is a legal theory that says that any data that you give to a third party “does not have any reasonable expectation of privacy.” This means that the government can request access to any data that you provide to any third party without a search warrant or probable cause. So the more biometric data that Facebook is collecting on us and storing forever, the less likely it is that we can have any Fourth Amendment privacy protections over any of this data. Facebook could one day know what you’re looking at and how you’re emotionally reacting to it, and there’s nothing stopping an abusive government from getting access to this same level of intimate data.
