The week of September 14, 2014

Defining privacy in the age of wearable cameras

By Micah Singleton

The age of wearables began on April 5, 2012. At a private event, Google cofounder Sergey Brin entered wearing a prototype of Project Glass, now known as Google Glass.

When it was first announced, Project Glass appeared to be the first artifact of the technology-filled future we’ve seen and heard about for years (Minority Report and elsewhere). Project Glass would provide an overlay of information so useful we would never want to take them off. In actuality, it was the first stepping stone to the next generation of technology, not its culmination.

Since that day in 2012, wearables have progressed significantly. There are now a number of different form-factors that can in some way make a task easier, or give you more detailed information about your actions.

Snow goggles from Recon Instruments can show you how fast you are going down a mountain or how high you are jumping, right next to your text messages on your phone. Gloves from Peregrine will allow you to play computer games with your hands. Documenting your life has never been easier with the Narrative clip, a camera that takes geotagged photos every 30 seconds. Under Armour and Ralph Lauren have chest straps and shirts that can monitor your fitness. The Mota Smart Ring will send texts, emails, and social media notifications to your finger.

And as you’ve likely noticed with the unveiling of the Apple Watch, smartwatches are currently leading the push, with products from LG, Sony, Samsung, and Motorola either currently available or on the horizon.

“I can imagine social norms emerging on when it’s appropriate to wear a camera, and when it isn’t appropriate.” —Kurt Wimmer

While wearables appear to be the next wave of technology, the reception to the increased amount of cameras—which many of these devices have, including some smartwatches—has not been completely positive. There have been multiple reports of people being attacked for wearing Google Glass, a troubling issue that hasn’t plagued the introductions of past technologies. Someone might have tried to attack you and steal your new iPhone back in 2007, but no one assaulted you because of it.

A woman named Sarah Slocum was attacked at a bar for wearing Google Glass, after people apparently suspected her of recording them. Reporter Kyle Russell had his Google Glass stolen off his face and subsequently smashed on the ground. In San Francisco, not too far from Google headquarters in Mountain View, Calif., where the ratio of Google Glass wearers is hugely increased, several bars have banned the device.

The attacks and bans on Google Glass, the symbol of the wearables movement, raises the bigger question of what is legal and what isn’t while wearing a device with a camera that has the capability to record others.

Cellphones with cameras have been around for a decade, without the kind of backlash that would make one hesitate to bring their phone to a bar. Is there a legal distinction between cellphones and wearable devices when it comes to cameras?

Wearable tech vs. cellphones

Andrew M. Perlman, a Suffolk University Law School professor and director of the Institute of Law Practice Technology and Innovation (and Google Glass explorer) doesn’t believe the current laws need to be dramatically overhauled.

“I think the law will necessarily evolve a bit, but I don’t think there is a sea change that’s really necessary to address these new wearables because devices have existed for a number of years now that can secretly record just about anything you’re doing,” Perlman said. “You open up any kind of catalog like Brookstone, and you’ll find all sorts of ways that you can secretly videotape people that are in your home, or [recording devices] that are the size of a pen, and you wouldn’t know that people are recording you.

“The idea that these devices are suddenly creating a new problem about being recorded without your knowledge, I think is a little overblown. Will [the expansion of wearables] increase the prevalence of these devices? Yes, but I think the legal problems are largely the same as they have been for the last several years, as the result of increasingly small cameras that can appear on any number of devices that you can carry around with you.”

Kurt Wimmer, a highly regarded lawyer specializing in privacy and technology law, agrees with Perlman’s assessment of the issue.

The right to privacy still exists, but as cameras continue to become smaller and more prevalent, the ability to exercise that right will be limited to fewer and fewer places.

“The current laws on privacy take hidden cameras and other Glass-type devices into account,” says Wimmer, whose clients include Facebook, Microsoft, Samsung, CBS, Viacom, and the National Football League. “There have been tiny cameras for a long time, and there has been litigation about them—typically involving their use in photojournalism. The cases generally draw a distinction based on the areas in which the cameras are used. Would a reasonable person have a legitimate expectation of privacy in the area in which the camera is used? If so, the photographer might be held liable for invasion of privacy. If not, the photographer should be able to take photographs, because there is no real privacy expectation for the courts to guard.

“For example, a hidden camera in a dressing room of a retail store would be a problem because others have a legitimate expectation of privacy there, but the same camera in the retail space of the store probably wouldn’t create any issue. I think that legal structure works for wearable cameras, too.

“The new element, of course, is that thousands of people will have wearable cameras instead of just a few photojournalists and reporters.”

“Wearables have the capacity to take a discreet photograph of a subject, but a much more detailed portrait of the wearer.”” —Julia Horwitz

The distinction between wearables and cellphones is currently largely based on camera size, but location will increasingly come into consideration, and not just where there is an expectation of privacy, according to Wimmer.

“Even though I don’t think that new laws will be required to deal with wearable cameras, I definitely think new social norms will evolve,” Wimmer says. “Movie theaters might justifiably prevent customers with wearable cameras from attending a film, given that a wearable camera could be used to record a bootleg copy of the film that could be distributed by the customer.

“Bars and other places that are ‘public’ but thrive on customers having some expectation that they won’t be recorded may follow suit as well. Even though there may not be new laws for wearable cameras, commercial regulations will have much the same effect in private spaces. I can imagine social norms emerging on when it’s appropriate to wear a camera, and when it isn’t appropriate.”

Locations where the expectation of privacy is applicable seems to be shrinking as technology continues to evolve. The right to privacy still exists, but as cameras continue to become smaller and more prevalent, the ability to exercise that right will be limited to fewer and fewer places, if a change isn’t made.

The future of privacy

While many are worried about people with wearables capturing their face or actions on camera, those who use these wearable devices may give up more information than even they expected. Data privacy is rapidly becoming a top commodity, and putting on a wearable device can expose more of you than you may have intended. The probability is high that in a room full of people with no wearable devices besides your own, you may end up being the most vulnerable.

“Wearables often collect data from the wearer and store it elsewhere,” notes Julia Horwitz, consumer protection counsel for EPIC, a nonprofit research organization that works to protect privacy on the Internet.

“Most digital cameras only store data about the image taken—size, color scale, date stamp, etc. But wearables are often capable of collecting much more data—not just images of the subject, but data about the wearer. A wristwatch with a camera could take the wearer’s pulse, for example, or track the wearer’s geolocation, and all of that data would be stored on a server somewhere else. Essentially, wearables have the capacity to take a discreet photograph of a subject, but a much more detailed portrait of the wearer.”

In the near future we could reach a point where cameras in a pair of glasses are unnoticeable, or next generation contact lenses allow you to take photos. And while Google Glass is leading the wearables charge, it’s far from alone. There are Internet-connected shirts that can take photos, and Bluetooth-enabled baseball caps with cameras. Glass still stands out in a crowd, but we’re rapidly progressing to an age where such devices blend in completely.

Cameras are already ubiquitous, thanks to the billions of mobile phones around the world, but in that ubiquity we still have visual cues that in most cases let us know we are being recorded. The raising of a hand with a phone in it lets you know someone is taking a photo or a video. If in the future, all a person has to do is look at you, and you can’t tell if they are recording or not, the paradigm of privacy will have shifted.

Glass still stands out in a crowd, but we’re rapidly progressing to an age where such devices blend in completely.

Once we reach this inevitable future, will the government step in? Legal experts say it’s unlikely there will be meaningful action on the federal level, but state governments are another matter.

“The question will be whether state lawmakers think that the existing frameworks for invasion of privacy work well enough now to be applied to wearable cameras, or if they have an appetite for crafting new legislation,” Wimmer says. “If they do go down the road of new laws, it will be important for them to be narrow—any laws that would apply to consumer wearables clearly should not apply to the legitimate use of hidden cameras for investigative journalism.”

EPIC’s Horwitz adds: “It is certainly possible that states will choose to regulate the use of specific kinds of devices that have picture-taking ability. The federal government may choose to put some restrictions on the manufacture of wearable cameras. But I think it is very unlikely that there will be federal laws that specifically govern the noncommercial use of wearable cameras.”

Perhaps, though, instead of a surge of new laws, we may witness current laws against recording people without consent enforced more actively, as wearables continue to get smaller and more advanced.

“I think we will reach a point where it becomes so saturated where we might want to adopt new rules, but it’s interesting to question what those might be,” Perlman says. “In Massachusetts for example, the law says I can’t record somebody without their knowledge or consent, and those laws in many states are already on the books. If you’re walking around with a device—in your contact lenses or your eyeglasses—and you start recording people, I think that would be against the law in many states.”

The backlash against wearables may die down, primarily because we won’t know we’re being recorded. At that point, we may enjoy the illusion of privacy, but the reality will be far from it.


Photo via Cheon Fong Liew/Flickr (CC BY SA 2.0)