Microsoft Kinect is a cool new gaming system for the XBox. It is basically a 3D camera that senses motion, and allows players to interact with a game simply by moving around–no controllers are necessary. Great for gaming. Even greater for Omniveillance.

Microsoft’s Dennis Durkin explored the advertising potential of Kinnect:

“We can cater what content gets presented to you based on who you are,” he told investors, suggesting that the Kinect offered business opportunities that weren’t possible “in a controller-based world.” And over time that will help us be more targeted about what content choices we present, what advertising we present, how we get better feedback. And data about how many people are in a room when an advertisement is shown, how many people are in a room when a game is being played, how are those people engaged with the game? How are they engaged with a sporting event? Are they standing up? Are they excited? Are they wearing Seahawks jerseys?

Woah.

As Engadget notes, this would violate Microsoft’s privacy policy:

Needless to say, sharing this level of photographic detail with advertisers presents some major privacy concerns — though it’s nothing we haven’t heard before — but moreover it’s explicitly against the privacy policy Microsoft presents Kinect users. “Third party partners use aggregated data to deliver Kinect experiences (games or applications), to understand how customers use their Kinect experiences, and to improve performance or even to help plan new experiences,” the Kinect Privacy and Online Safety FAQreads, but also “They are not permitted to use the information for marketing purposes such as selling you games or services, or for personalizing advertising” (bolding ours).

The WSJ followed up with Microsoft:

Microsoft emailed the following statement about its current policies regarding privacy and Xbox: “Xbox 360 and Xbox LIVE do not use any information captured by Kinect for advertising targeting purposes. Microsoft has a strong track record of implementing some of the best privacy protection measures in the industry. We place great importance on the privacy of our customers’ information and the safety of their experiences.”

Microsoft’s goal, to “cater what content gets presented . . . based on who you are,” is a core tenant of omniveillance. While in the past, data was primarily collected when people voluntarily submitted information to the web–such as uploading a picture to facebook, or tweeting–new forms of omniveillance integrate data from the real world to build up digital profiles of people. Google Street View crossed the proverbial fourth wall by collecting data from the real world. Now Microsoft may be getting in on the game.

I wrote about bridging the divide between the real world and the virtual world to collect personally identifiable user information for advertising purposes nearly three years ago in Omniveillance:

An example of such a bridge between a person’s online presence and the real world takes the form of new smart billboards, a preview of omniveillant technologies to come. A French company called Quividi has installed billboards in New York City equipped with cameras and powerful computers.151 By analyzing the facial characteristics of a person walking in front of the camera (e.g., “cheekbone height and the distance between the nose and the chin”), the billboard can roughly determine the age and gender of a passerby.152 Based on this profile, the billboard, equipped with a large flat-screen television, delivers advertisements specifically targeted to the particular demographic.153 The goal of this technology is “to tailor a digital display to the person standing in front of it—to show one advertisement to a middle-aged white woman, for example, and a different one to a teenage Asian boy.”154 [J.B. This parallel’s Microsoft’s goal to “cater what content gets presented . . . based on who you are”]

Imagine an alternative business model in an omniveillant society, wherein these cameras do not simply analyze the facial features of a promenading consumer, but rather snap a photo, and search tagged images on the Internet to ascertain the identity of the person. With this technique, the billboard does not simply know the person’s age or gender, but can ascertain what online stores the person frequents, who the person’s friends are, and volumes of other personal information. An advertiser’s dream, indeed! Imagine further that the billboard recorded how long a person stared at the billboard, in order to gauge his interest at a particular advertisement, or even whether a person began discussing the billboard with a fellow spectator. Unassuming spectators would be unknowingly conscripted into serving as a veritable Nielsen rating focus group. This information could be further disseminated throughout the Internet to create a profile about a person’s likes, dislikes, and preferences. The information gleaned from these billboards could serve as a perfect conduit for an omniveiller to gather more information about people from the real world, in order to tell them things like “ ‘[w]hat shall [they] do tomorrow’ ” or “ ‘[w]hat job [should they] take.’ ”155

Look for kinect-like cameras to be installed on billboards nationwide to collect such information. Because people have no right to privacy in public, this activity will be perfectly legal–and Microsoft will not be bound by any silly privacy policies. And who needs to collect this information from billboards in public when gamers voluntarily install an XBox kinect in their living rooms?

I wrote the bulk of Omniveillance the summer after my first year of law school in July of 2007. The George Mason Law Review, on which I served as an Articles Editor, refused to publish this piece. One of the editors complained that it was unbelievable, and that the things I wrote about would never happen. Heh. I went on to publish it in the Santa Clara Law Review. It was my first published article, yet it remains the most relevant. As time goes by, more and more of the predictions I made come to fruition. Sometimes I hate it when I’m right.