Evan Schuman's StorefrontBacktalk

But in the store, you get a much better idea of the age of a person than you do on TV. You might also see the pair of 15 year olds hanging around outside the store waiting to take possession of the alcohol the purchaser just bought. So who has the responsibility for verifying age, and who has the criminal liability if it isn’t done? It is, of course, the “seller.” And who is the “seller” in this transaction? Stop me if you have heard this before—we don’t know.

Another issue for robo-bartenders is one of records retention: by law, by policy and as a practical matter. Of course, certain records relating to the transaction have to be created and stored; the credit-card verification process, for example. Those records have to be maintained under PCI rules and under contracts with the financial institutions to validate the fact of, and the amount of, the transaction in question (the machines don’t take cash.)

But what about the other information: the video stream, the breathalyzer data, the calibration of the breathalyzer, the driver’s license data, the license verification information, the link showing that the purchaser’s license was actually checked, the log records of refusals to show that a transaction was refused (and the reason for the refusal)? Are such records retained? Are they subject to discovery? Are they subject to grand jury subpoena? Can the police access such records?

Under the Pennsylvania scheme, the only records that are presumably kept are the PCI records related to the transaction, and logs of refusals. But I doubt that this is actually the case. The manufacturer must keep records relating to the maintenance of the kiosk and the embedded breathalyzer to show that it was working. If the state motor vehicle office verifies that the license is valid (as opposed to merely reading the barcode on the back of the license), then a record of this check may be kept, too.

All of these things are important, because of potential liability to the merchant. Imagine if a customer walks into the local Wal-Mart (captured on video) and tries to buy a bottle of wine but is refused because his BAC is 0.1—well above the legal limit. The disgruntled and intoxicated customer now staggers to the parking lot, where he runs over an elderly couple (also captured on video).

The store might be deemed to have known—or reasonably should have known—that the driver was drunk. A jury might determine that the store should have done something to stop him (even though it didn’t serve him). And what if a person is arrested in the parking lot for DUI and wants to subpoena the records of the robo-vendor to show that he successfully bought alcohol, thereby creating a prima facia case that he was not drunk? Do these records exist?

Unlike a human being, a kiosk cannot exercise judgment. It cannot (unless programmed to) confiscate the fake ID used by an underage college student. It cannot determine if the consumer is acting “weird” or dangerous. It cannot report to the police a criminal attempt to purchase alcohol unlawfully. It can only dispense its contents under circumstances where it is programmed to do so. So that kiosk in your store can be programmed to be a licensed liquor store or a mini police precinct. It may be more trouble than it is worth.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.