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How Google’s human-like speaking bot could break California law

Last week, Google wowed the tech community by introducing a human-like speaking assistant at its I/O developers conference. With natural speech such as “ums” and “uhs” spliced in, Google Duplex allowed its Assistant bot to make reservations at hair salons and restaurants without the store employees realizing they were talking to a robot over the phone.
Besides the ethical questions Duplex raises, there are also potential legal issues, such as whether Google will have to get consent to record phone conservations with Duplex and disclose to recipients they are speaking to a robot.
Legal experts raised questions about how Google’s possible need to record Duplex’s phone conversations to improve its artificial intelligence may come in conflict with California’s strict two-party consent law, where all parties involved in a private phone conversation need to agree to being recorded.

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“One would have to gain actual or implied consent for the recording,” said Chris Hoofnagle, a UC Berkeley professor who teaches information privacy law and internet law. “Importantly, the consent cannot be ‘constructive’ … giving the business a heads-up might not suffice. The actual person recorded would need to consent.”
California joins 11 other states in the United States that go by two-party consent law. Thirty-eight other states only need one party of the conversation — which can be Google itself — to record a phone conversation, according to Bruce Boyden, an assistant professor of law at Milwaukee-based Marquette University.
Google may be pre-emptively preparing itself to not violate any laws, according to a report from Bloomberg on Friday . In an internal meeting during which Google executives demonstrated the Duplex, the system identified itself as the Google Assistant and informed people that the call was being recorded.
But it is possible that Google may have already violated California’s consent law, Hoofnagle said.
In a blog post released after Google Duplex’s I/O debut , Google said two of its Duplex engineers successfully used Duplex to reserve a dinner table at a Chinese restaurant — and attached a recording of the phone call. Tech news outlet Mashable reported Thursday that the Chinese restaurant was in Saratoga and its manager told Mashable that the Google engineers did make the reservation but did not give the restaurant advance notice.
This news organization was unable to reach the restaurant’s manager despite multiple calls.
It is unclear if the hair salon and the restaurant whose calls with Duplex were recorded and presented at I/O also were based in California. But if Google engineers did use Duplex to book a restaurant in Saratoga or anywhere in California without giving the employee notice that they were recording the conversation, Google may have broken the consent law, according to Hoofnagle.
“The person called presumably could sue Google,” Hoofnagle said. “The next question to ask is whether the conversation was ‘confidential,’ but in most circumstances, a telephone conversation is objectively confidential.”
Google did not respond to multiple requests for comment about the identity of the hair salon and restaurants and whether the company asked permission to record the phone conservation beforehand.
In a statement to CNET earlier this month, Google said it will be “designing (Duplex) with disclosure built-in, and we’ll make sure the system is appropriately identified.”
“We understand and value the discussion around Google Duplex — as we’ve said from the beginning, transparency in the technology is important,” a Google spokeswoman said in a statement. “What we showed at I/O was an early technology demo, and we look forward to incorporating feedback as we develop this into a product.”
Google plans to roll out a beta version of Duplex this summer to a small number of people for limited purposes, such as booking reservations and checking holiday hours, according to CNET.
Google’s legal headaches may apply even if the business they call using Duplex is outside California, Boyden said. Thanks to a 2006 decision by the California Supreme Court, a phone conversation in which one party is in California — such as the Google engineers who developed Duplex — is subject to the state’s two-party consent law, even if the other party is based in a one-party consent law state
But Boyden said nothing about Google Duplex is set in stone as legal experts and governments figure out how to chart the new technology.
“This is new tech and everybody is saying ‘whoa, this is crazy,’ ” he said. “I don’t think we have a good sense for how to properly react to this.”

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