Snap Into a Privacy Lawsuit!

Spectacles About to Introduce a New Generation to Eavesdropping, Intrusion Into Seclusion

specs3-0Snap (nee Snapchat) has just announced Spectacles, a funky pair of sunglasses with built-in video recording capability. Exactly like Google Glass before it, users can tap a button to activate a forward-facing camera in the corner of the frames for 10 seconds, and tap it again to extend the recording. Unlike Glass, they’ll cost less than a tenth of the price (about $130) and be fashionable enough to actually wear outside (as long as you’re young and hip enough to pull them off, anyway). Nor do Spectacles have any Glass-like ambitions to be a wearable computing platform; instead, they are content to function as a GoPro on your face.

As with everyone else who has been involved in the wearable tech industry for any length of time (and especially those of us who actually wore Glass), this development is wholly unsurprising. To the contrary, if anything, it’s behind schedule. As I wrote on this blog in 2012 (and later in my 2015 book Augmented Reality Law, Privacy, and  Ethics), “we are entering an era where personal, wearable video recording devices are about to become ubiquitous.” Glass broke the ice on the idea of wearing smart eyewear; Snap’s cultural currency with millennials ensures that Spectacles will help drive the wedge that leaves society permanently open to the idea. This, in turn, will only solidify public demand for the dozens of augmented reality headsets already in development around the world.

Devices such as these bring the privacy debate full circle. A generation ago, the chief concern of privacy law was being spied upon and recorded without one’s knowledge. That gave rise to anti-eavesdropping statutes, wiretapping laws, and the common law torts of intrusion into seclusion (i.e., invading the private space, solitude, or seclusion of a person, or the private affairs or concerns of a person, in a highly offensive way) and disclosure of private facts (i.e, facts that are non-newsworthy, not part of public records, public proceedings, not of public interest, and would be offensive to a reasonable person if made public). These issues are largely an afterthought in contemporary privacy conversations, which are more concerned with the security of stored data and the circumstances under which certain categories of information can be disclosed. (Not that the issue ever went away, of course, especially with hidden cameras and drones regularly making the news.) Now that we’ll all have video cameras literally in and on our faces, though, old-fashioned fears of being spied upon will almost certainly be making a comeback.

Not that Spectacles themselves have set the sky falling, mind you. The one feature common to almost all invasion of privacy torts and eavesdropping laws is that the putative victim must have had an objectively reasonable expectation under the circumstances that the thing being recorded would be private. One of the most common ways to negate that expectation is to make it obvious for all to see that a recording is being made. That’s why video cameras often come with a red light to indicate that the “record” mode is on. It’s also why Glass was never that much of a privacy concern, since the large, translucent prism above the user’s eye lit up like a Christmas tree when the video camera was on. Snap has apparently taken this lesson to heart as well, since both corners of the Spectacle are said to light up when recording. From the look of the models now being advertised, those lights look like they’re (smartly) designed to be noticed.

But the reassurance these measures give only goes so far. As a media litigation attorney, I spent an entire decade, for example, helping defend Dr. Dre–of all people–from charges of eavesdropping, of all things. The entire case stemmed from handheld video recordings made backstage at the Detroit stop of the Up in Smoke Tour, later published on the concert DVD. And among the primary issues argued in the case was whether the cameras in question had red lights on and were visible to the people being recorded.  We ultimately won the case by proving that the plaintiffs didn’t have a reasonable expectation of privacy in the conversations, but only after ten years and six court rulings.

So whether or not your Spectacles are lit up, that’s not going to stop someone you record from claiming they didn’t see the light or otherwise didn’t realize the cameras were there. And lights do even less to mitigate the potential for recording nearby audio that may be private. The human ear has a marvelous ability to hone in on a particular sound and tune out the rest, but microphones do not. Unwary Snappers may record videos only to later discover that they’ve also captured unrelated, confidential conversations. (Similar concerns have been raised over Apple’s Live Photos, though I have yet to read an example of eavesdropping actually happening this way.)

Eavesdropping statutes are serious business, too, because they can create a civil tort, criminal liability, or both.  Think back to the case of now-former Rutgers student Dharun Ravi, who was sentenced to 30 days in jail for using his webcam to secretly record and broadcast an intimate encounter that led his roommate to commit suicide.

Employers must also now grapple, if they haven’t already, with how they will handle devices such as Spectacles. As I described in a 2013 post, Glass inspired me to begin inserting “sousveillance” clauses into my clients’ digital media policies to cope with these issues. Other workplaces deal with on-site recording and privacy issues through collective bargaining agreements, and employers’ ability to regulate employee recording may sometimes be curtailed by federal labor laws.

Meanwhile, the definition of what society collectively considers a “reasonable” expectation of privacy will continue to evolve. A generation ago, the type of constant video surveillance we take for granted today would have been intolerable. As today’s Snapchatting millennials rise up through the legal ranks and become judges, they may similarly have little sympathy for plaintiffs pleading ignorance of the wearable devices all around them.

In sum, far from being revolutionary, Spectacles are one long-anticipated step along the evolutionary path toward ubiquitous wearable computing. We can foresee what that phenomenon will do to our concepts of privacy. In the near term, though, those on the forefront of the change would be well-advised to be smart about how they use their Spectacles, lest they land themselves in hot water.