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`1923172
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`DOCKET NO.
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`UNITED STATES OF AMERICA
`BEFORE THE FEDERAL TRADE COMMISSION
`
`COMMISSIONERS:
`Joseph J. Simons, Chairman
` Noah Joshua Phillips
`Rohit Chopra
` Rebecca Kelly Slaughter
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`
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`Christine S. Wilson
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`________________________________________________
`
`In the Matter of
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`EVERALBUM, INC., also d/b/a EVER
`and PARAVISION, a corporation.
`________________________________________________
`
`
`COMPLAINT
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`The Federal Trade Commission, having reason to believe that Everalbum, Inc., a
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`corporation (“Respondent”), has violated the provisions of the Federal Trade Commission Act,
`and it appearing to the Commission that this proceeding is in the public interest, alleges:
`
`Respondent Everalbum, Inc. (“Everalbum”), also doing business as Ever and Paravision,
`1.
`is a Delaware corporation with its principal office or place of business at 1160 Gorgas Ave., San
`Francisco, California 94129.
`
`The acts and practices of Respondent alleged in this Complaint have been in or affecting
`2.
`commerce, as “commerce” is defined in Section 4 of the Federal Trade Commission Act.
`
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`EVERALBUM’S BUSINESS PRACTICES
`
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`Since 2015, Everalbum has provided Ever, a photo storage and organization application,
`3.
`to consumers. Ever is available as both an iOS and Android mobile application (“app”), as well
`as in a web and desktop format. Globally, approximately 12 million consumers have installed
`Ever.
`
`Ever allows consumers to upload photos and videos to Ever’s cloud servers from sources
`4.
`such as the user’s mobile device, computer, or accounts with social media services, such as
`Facebook or Instagram, or cloud-based storage services, such as Dropbox or One Drive. By
`storing photos and videos on Ever’s servers, consumers can free up storage space on their
`devices. Ever uses automated features to organize users’ photos and videos into albums by
`location and date.
`
`

`

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`
`
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`The Ever App’s Face Recognition Feature
`
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`In February 2017, Everalbum launched its “Friends” feature, which operates on both the
`5.
`iOS and Android versions of the Ever app. The Friends feature uses face recognition to group
`users’ photos by faces of the people who appear in the photos. The user can choose to apply
`“tags” to identify by name (e.g., “Jane”) or alias (e.g., “Mom”) the individuals who appear in
`their photos. These tags are not available to other Ever users. When Everalbum launched the
`Friends feature, it enabled face recognition by default for all users of the Ever mobile app. At
`that time, Everalbum did not provide users of the Ever mobile app an option to turn off or disable
`the feature.
`
`Starting in May 2018, Everalbum rolled out a process through which Ever presented Ever
`6.
`mobile app users located in Texas, Illinois, Washington, or the European Union with a pop-up
`message that, as shown below, requests that those users choose whether they would like the Ever
`application to use face recognition. In so doing, Everalbum disabled the Friends feature and face
`recognition for those users unless and until they clicked “Yes” to turn on the Friends feature and
`face recognition. At the same time, Everalbum also introduced into the Ever mobile app a
`setting that allowed users located in Texas, Illinois, Washington, or the European Union to turn
`on or off the face recognition feature.
`
`
`Ever uses facial recognition
`technology to automatically
`create albums of you and
`your friends .
`
`Do you wan t Ever to do this?
`
`No thanks
`
`
`
`
`In April 2019, Everalbum rolled out to Ever mobile app users located outside of Texas,
`7.
`Illinois, Washington, and the European Union the pop-up message requesting that users choose
`whether they would like the Ever application to use face recognition. This functioned identically
`to the pop-up message previously provided to users located in Texas, Illinois, Washington, and
`the European Union. That is, Everalbum disabled the Friends feature and face recognition unless
`and until the users clicked “Yes” to turn on the Friends feature and face recognition. At this
`time, Everalbum also rolled out to all Ever mobile app users the setting that allows users to turn
`on or off face recognition.
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`
`2
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`

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`Since Everalbum has presented Ever mobile app users with the pop-up message
`8.
`requesting that users choose whether they would like the Ever application to use face
`recognition, approximately 25% of the approximately 300,000 users who made a selection when
`presented with the pop-up message chose to turn face recognition off.
`
`Since July 2018, Everalbum has posted in the “Help” section of its website,
`9.
`everalbum.com, an article entitled What is Face Recognition? That article includes the following
`statements:
`
`
`When face recognition is enabled, the technology analyzes the photos and videos
`that you upload to create a string of numbers that we call a “face embedding”
`(emphasis added).
`
`***
`
`When face recognition is turned on, you are letting us know that it’s ok for us to
`use the face embeddings of the people in your photos and videos, including you,
`and that you have the approval of everyone featured in your photos and videos
`(emphasis added).
`
`
`However, prior to April 2019, Ever mobile app users who were located anywhere other
`10.
`than Texas, Illinois, Washington, and the European Union did not need to, and indeed could not,
`take any affirmative action to “let[ Everalbum] know” that it should apply face recognition to the
`users’ photos. In fact, for those users, face recognition was enabled by default and the users
`lacked the ability to disable it. Thus, the article was misleading for Ever mobile app users
`located outside of Texas, Illinois, Washington, and the European Union.
`
`
`Everalbum’s Use of Ever Users’ Photos to Train Its Face Recognition Technology
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`Everalbum’s application of face recognition to photos uploaded by Ever mobile app
`11.
`users, in some cases without affirmative express consent, was not limited to providing the
`Friends feature. When Everalbum initially launched the Ever app’s Friends feature in February
`2017, the company used publicly available face recognition technology to power the feature.
`However, the company quickly began developing its own face recognition technology, including,
`in four instances, by using images it extracted from Ever users’ photos to attempt to improve the
`technology.
`
`Between September 2017 and August 2019, Everalbum combined millions of facial
`12.
`images that it extracted from Ever users’ photos with facial images that Everalbum obtained
`from publicly available datasets in order to create four new datasets to be used in the
`development of its face recognition technology. In each instance, Everalbum used computer
`scripts to identify and compile from Ever users’ photos images of faces that met certain criteria
`(i.e., not associated with a deactivated Ever account, not blurry, not too small, not a duplicate of
`another image, associated with a specified minimum number of images of the same tagged
`identity, and, in three of the four instances, not identified by Everalbum’s machines as being an
`image of someone under the age of thirteen).
`
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`
`3
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`

`

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`13. When compiling the second dataset in April 2018, in addition to applying the criteria
`described in paragraph 12, Everalbum did not include any facial images extracted from the
`photos of Ever users Everalbum believed to be residents of either the United States or European
`Union based on the users’ IP addresses.
`
`After testing it, Everalbum discarded the face recognition technology that it developed in
`14.
`the Fall of 2017 and April 2018 using the first two datasets it had compiled by combining facial
`images it had extracted from Ever user’ photos with facial images obtained from publicly
`available datasets.
`
`15. When compiling the third dataset in June 2018, in addition to applying the criteria
`described in paragraph 12, Everalbum excluded facial images extracted from the photos of Ever
`users Everalbum believed to be residents of Illinois, Texas, Washington, or the European Union
`based on the users’ IP addresses. In this instance, Everalbum submitted the resulting face
`recognition technology to the National Institute of Science and Technology for accuracy testing
`and comparison to competing face recognition technologies.
`
`16. When compiling the fourth dataset in August 2019, in addition to applying the criteria
`described in paragraph 12, Everalbum excluded facial images extracted from the photos of Ever
`users who had not either turned on the setting, or clicked “Yes” on the pop-up message,
`described in paragraphs 6-7 above. Everalbum used the resulting face recognition technology
`both in the Ever app and to build the face recognition services offered by its enterprise brand,
`Paravision (formerly Ever AI). Paravision offers its face recognition technology to enterprise
`customers for purposes such as security, access control, and facilitating payments. Everalbum
`has not shared images from Ever users’ photos or Ever users’ photos, videos, or personal
`information with Paravision’s customers.
`
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`Everalbum’s Account Deactivation Process
`
`Everalbum offers users who no longer wish to use Ever the ability to deactivate their
`17.
`Ever accounts. Since January 2017, approximately 36,000 Ever users have deactivated their
`accounts.
`
`As shown below, when a user chooses to deactivate their Ever account, Everalbum
`18.
`displays a message that tells the user: “We’re sorry to see you go! If you choose to deactivate
`your account, you will permanently lose access to [##] photos and [##] albums.” (The message
`specifies the numbers of photos and albums stored in the user’s Ever account.) The message
`includes a button for the user to click to deactivate their account.
`
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`4
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`We're sorry to see you go1
`
`U you choos~ to de<:1ctiva-re your account you vi H
`pE~rrnanEHlt ~Y lo!~e acc-E-~ss to:
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`337 photos
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`21 albums
`
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`If the user clicks the “Deactivate My Account” button, as shown below, Everalbum then
`19.
`displays a second message stating: “Are you sure? You will lose access to your account and we
`can’t undo this.” That message includes buttons that present the user with the choice to
`“CANCEL” or “DELETE.”
`
`
`Are you sure?
`You will lose access to your account. and
`we can't undo this.
`
`CANCEL OF.1.ETE
`
`
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`
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`In response to customer inquiries about deleting an Ever account, in multiple instances,
`20.
`Everalbum has stated: “[Y]ou can deactivate your account at any time by signing into our app,
`going to ‘Settings’ > ‘General Settings’ > ‘Deactivate’. Please note that this will permanently
`delete all photos and videos stored on your account as well” (emphasis added).
`
`21.
`
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`Everalbum’s Privacy Policy also states:
`
`
`
`5
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`

`

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`If you wish to deactivate your account or request that we no longer use your
`information to provide you any services or certain services, such as our Friends
`feature or our face recognition services, you can do that via your account settings,
`or you can email us at privacy@everalbum.com. Please understand that we may
`need to retain and use your information for a certain period of time to comply
`with our legal obligations, resolve disputes, and enforce our agreements.
`Consistent with these requirements, we will try to delete your information as soon
`as possible upon request. Please note, however, that there might be latency in
`deleting information from our servers and backed-up versions might exist after
`deletion (emphasis added).
`
`
`Contrary to the statements Everalbum has made that account deactivation will result in
`22.
`Everalbum deleting the user’s photos and videos, until at least October 2019, Everalbum did not,
`in fact, delete the photos or videos of any users who had deactivated their accounts and instead
`retained them indefinitely. Everalbum began implementing in October 2019 a practice of
`deleting all the photos and videos associated with Ever accounts that have been deactivated for
`more than three months.
`
`
`Count I
`Misrepresentation Regarding Ever Users’ Ability to Control
`the Ever App’s Face Recognition Feature
`
`
`As described in Paragraph 9, Respondent represented, directly or indirectly, expressly or
`23.
`by implication, that Everalbum was not using face recognition unless the user enabled it or
`turned it on.
`
`In fact, as set forth in Paragraphs 5-8 and 10, until April 2019, Everalbum was using face
`24.
`recognition by default for all Ever mobile app users who were located anywhere other than
`Texas, Illinois, Washington, and the European Union and did not provide those users with a
`setting to use the app and turn off face recognition. Therefore, the representation set forth in
`Paragraph 9 is false or misleading.
`
`
`Count II
`Misrepresentation Regarding Deletion of
`Ever Users’ Photos Upon Account Deactivation
`
`As described in Paragraphs 18-21, Respondent has represented, directly or indirectly,
`25.
`expressly or by implication, that Everalbum would delete Ever users’ photos and videos upon
`users’ deactivation of their accounts.
`
`In fact, as set forth in Paragraph 22, until October 2019, Everalbum did not delete any
`26.
`Ever users’ photos and videos upon account deactivation and instead stored them indefinitely.
`Therefore, the representation set forth in Paragraphs 18-21 is false or misleading.
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`6
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`Violations of Section 5
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`The acts and practices of Respondent as alleged in this Complaint constitute unfair or
`27.
`deceptive acts or practices, in or affecting commerce, in violation of Section 5(a) of the Federal
`Trade Commission Act.
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`THEREFORE, the Federal Trade Commission this _______ day of _______, 20__, has
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`issued this Complaint against Respondent.
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`SEAL:
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`By the Commission.
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`[April Tabor]
`Acting Secretary
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`7
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