Apple Watch’s Live Rewind and Siri Recap Face US Privacy Law Questions

Apple says the latest Apple Watch models support four new audio features that use the wearable’s microphones: Sound Recognition, for sounds such as doorbells and fire alarms; Music Recognition, powered by Shazam; Live Rewind, which transcribes what was just said if the wearer missed it; and Siri Recap, which produces high-level summaries of conversations. Live Rewind and Siri Recap are the features creating potential privacy controversy because they involve recording what the wearer and surrounding people say.

The legality of audio recording conversations depends on the state or country. Many US states have two-party consent requirements, meaning everyone in a conversation must know it is being recorded and agree. In those states, using a device to record a conversation with someone else without their awareness and agreement would not be legal. Some exceptions apply to law enforcement, but they are not relevant here. If the Apple Watch stored audio recordings and made them available for replay, the law would be clear: consent would be required. The complication is that Apple explicitly says this is not the case.

Apple has described privacy measures for the features. Neither operates in the background by default; each must be enabled. Live Rewind must be activated every time it is used and operates only for 15 seconds. Apple says nobody gets access to the audio recordings, which are stored only in a secure exclave chip. If a conversation is detected, audio flows into a protected buffer inside the Secure Exclave on the S11 chip. It is isolated in hardware so it is inaccessible to the user, the operating system, apps, and even Apple. The recordings are stored only temporarily and deleted as soon as they have been used to generate a transcription or to include in a summary. Live Rewind also generates an audible alert when used, even if the Watch is in silent mode or connected to headphones.

Despite those measures, Bloomberg reported that legal experts highlighted uncertainties created by the features. Bloomberg’s Natalie Lung put the question to attorneys in California, Massachusetts, Pennsylvania and Washington on Sept. 11. Those states generally prohibit intercepting a private or confidential conversation without the consent of everyone involved. None of the lawyers she spoke to was convinced that Apple’s protections would shield a wearer. Speech processed continuously, with no conventional recording at the end, may still count as interception under state law.

Phil Lauer, a defense attorney in Pennsylvania, said the technology is “very close to being legal, because it’s not an individual who is actually receiving and using this data.” But he added that “the argument can be made that it’s unlawful” because the device is picking up audio and interpreting it. “Whether the courts will see it that way, given all the sort of privacy protection things that Apple has used, that’s an interesting question and it’s going to be coming up,” Lauer said.

9to5Mac said the issue is another example of law lagging behind technological capabilities. If an audio recording is used to generate a transcript or a summary without that recording ever being accessible to anybody at all, does it violate laws forbidding recordings? The short answer appears to be that nobody knows. The Live Rewind feature seems particularly benign, the site said, because it can only capture the last 15 seconds of what someone said and emits an audible alert when used. The issue will likely need to be tested in court. The dilemma for Apple Watch wearers is that they, not Apple, would be held legally responsible if a court rules that the new features are covered by these laws.