The Complex Ethics (and Laws) of Smart Glasses
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The near-ubiquity of smartphones in the late 2000s changed more than just how we spend time in lines. With a high-quality camera and microphone in almost everyone’s pocket, as well as the ability to instantly broadcast anything to a potentially multi-million audience, our collective understanding of privacy has been forever altered. If you’re even slightly concerned about how your public actions will appear on YouTube, you’re simply not paying attention.
As smart glasses with cameras and microphones become increasingly popular, we’re facing another, less noticeable change. Unlike smartphones, which record immediately, smart glasses can record video or audio virtually unnoticed, raising new legal, ethical, and moral questions. Here’s what you need to know, whether you’re using smart glasses now or plan to in the future.
The legality of filming in public places
While the general public’s understanding of “privacy” may have changed, legislation may not be keeping pace. “Current laws don’t provide the protections that most people probably expect,” says David B. Hoppe, an international transaction lawyer specializing in emerging legal issues in media and technology.
Some laws have been passed to accommodate new technologies (such as bans on revenge porn), but the general legal framework regarding privacy was developed even before the advent of smartphones and smart glasses. Let’s take a closer look.
A Textbook on Public Photography
State and federal laws criminalize certain types of recording in public places, such as upskirting, but overall, the First Amendment broadly protects people’s right to photograph and video anything they see. “In general, we assume that photography, video, and other data recording in public places are unrestricted,” says Eric Goldman , a professor at Santa Clara University School of Law and co-director of the High Tech Law Institute .
This assumption applies to smart glasses, so when you’re in a public place, you can generally record whatever you want. “In general, the video recording feature can be used in public places,” Hoppe says.
However, how you use the recording matters. “There may be a question about whether or not there is a commercial aspect to its use,” Hoppe says. “Many states may require publicity release from anyone identifiable in the video.”
However, the meaning of the word “commercial” can be unclear. Something like filming a commercial is likely to be considered commercial performance and have less legal privacy protection than, say, creating a feature film for your filmmaking course. Somewhere in the middle is monetizing videos on social media. Monetization doesn’t automatically negate legal protections for free speech, but it can shift content toward commercial considerations, and local filming laws may also apply to what you film. It’s complicated, so if you have any doubts, consult a lawyer.
Although private businesses are a little different.
Courts have generally held that a patron of a private establishment open to the public, such as a store or restaurant, can expect greater privacy than on a public sidewalk, but less than in a truly private location, such as a home. “It has to do with the expectation of privacy,” Goldman explains. “A restaurant can range from a family dining room, where such an expectation would be unreasonable, to a private booth located 50 feet (15 meters) in any direction from any other location, where the expectation of privacy may be more reasonable.”
While photography is generally legal on public premises, owners have the right to prohibit photography. “Businesses can typically set rules about how customers interact with each other,” says Goldman. “In that case, you’ll have to prohibit access to their premises.”
So, if you wear Ray-Ban Metas at the gym, you probably won’t be arrested, but the gym can/should have a “no photography” policy, which can be enforced by barring entry and calling the police if you don’t leave. Of course, recording in closed areas of any establishment, such as locker rooms, is prohibited throughout the United States.
Video versus audio recording
Recording audio with smart glasses can pose legal risks that don’t apply to video. While photographs taken in public places and in plain sight are generally legal, audio recordings are a different matter. As with a conversation in a restaurant, a “reasonable expectation of privacy” is key. Two people quietly conversing on a park bench likely expect a level of privacy that someone shouting on a street corner doesn’t.
Courts have generally agreed that recording conversations in public places is protected by the Constitution, as long as all participants in the conversation know they are being recorded and consent to it. The opposite—a third party recording a private conversation without the participants’ knowledge—is often considered “eavesdropping,” which is often a crime.
The situation becomes more complicated when only one party consents to the recording. “Typically, in some states, recording a conversation between two parties requires the consent of both parties,” says Goldman. “So, if the glasses are used in these conversations without the other party’s consent, it would be a violation in those states.”
Below is a breakdown of the states with unilateral and multilateral consent. If you have any doubts about the legality of recording, consult a lawyer or simply don’t press the record button.
The other side of the coin: what about user privacy?
You may have bought smart glasses to record your life, but make no mistake: they’re recording you. By tapping “Agree” on the terms of service screen, you may be allowing a large data company to collect your GPS data, biometric data (like eye movements and health information), contact lists, messages, political views, what you see, what you say, who you communicate with, and much more. And this is legal because you consented. Usually.
“Some [data collected by your smart glasses] is controlled by contract,” says Goldman. “Therefore, Meta may disclose its privacy policy as part of its consumer disclosures, and then those rules may apply. In some cases, Meta’s access to this data may be limited,” says Goldman.
The bottom line is that you have some protection for your personal data, and you can’t opt out of it with a single click. A number of federal laws provide some protection: HIPAA protects the privacy of your medical records, the FCRA protects your credit reports, and other federal laws protect financial information and children’s privacy. But California law provides more meaningful consumer privacy protections. Over the past 10 years, California has passed relatively robust privacy laws that give California residents the right to know what personal data companies are collecting, the right to delete that data, and the right to opt out of the sale of their data.
“But I live in Ohio,” you might say. First, sorry. Second, we’ve got your back! Major tech companies have largely adopted California’s privacy laws as the basis for their data collection. So while the amount of data your glasses collect isn’t ideal, at least you can get some of it back.
Exciting New Horizons of Privacy Invasion
Check out this video from a recent concert by OG trip-hop band Massive Attack:
The group uses facial recognition technology, displaying viewers along with their professions. Instantly identifying strangers and extracting information about them from publicly available databases is possible with existing smartglasses technology and, in theory, is perfectly legal, even if the person being filmed is unaware of it. However, how you use the collected information may be illegal.
According to Hoppe, current laws simply weren’t designed with smart glasses in mind. “The basic standard, dating back to common law, was that if you were in a public place, you had no reasonable expectation of privacy. But back then—and until the last two decades—being in a public place meant you could be watched, but you simply became a memory in someone’s mind. It wasn’t recorded on video that could be immediately released to the world,” Hoppe said.
Where is the law heading next?
Privacy laws in the US are currently largely responsive to the changes new technologies are bringing to our lives. But what would things look like if we were ahead of the curve (or at least more actively trying to catch up?) Like everything else in the world, it’s complicated.
Hoppe imagines one extreme: a set of laws “maximalistically protecting privacy,” according to which no one can be recorded without their consent, even in public. “That would be reasonable, right? But then there’s the problem of things like CCTV cameras and other stationary devices that simply record everything. Is that really a threat to privacy?” Hoppe asks. “And if so, isn’t that outweighed by the benefits to society as a whole, in terms of security, crime prevention, property protection, and so on?”
And then there’s this whole “freedom” thing. “The idea that there’s a public sphere where we can freely record, record, and share our opinions about what we see is an integral part of free speech,” Goldman says. “And if privacy laws overly restrict it, it will not only deprive us of the ability to express ourselves and respond to the world we see, but it will also seriously impact people’s ability to control conversations, which will ultimately rob us of our power as individuals… We can’t allow concerns about people’s desire to control what others know about them to stifle people’s ability to have organic, healthy, prosocial conversations.”
Social norms of recording with smart glasses
If you live a moderately ethical life (and don’t comment on culture at concerts like Massive Attack), you probably don’t want to secretly dox everyone on the bus, and social norms probably outweigh potential legal action. You might not be hauled off in handcuffs for recording your dinner on a restaurant patio, but you’ll face disdain from almost every patron, especially if you’re shoving your phone in their face. Smart glasses, being less noticeable than iPhones, change the situation somewhat. The etiquette for their use is evolving, leaving us all in a gray area where legal and socially acceptable don’t always coincide.
Even if they’re not enshrined in law, we’ve (mostly) collectively agreed on some norms when it comes to cell phones—don’t film others at the gym, don’t stick your phone in a stranger’s face, etc.—and we’re getting closer to that with our smart glasses, but until we get there, it’s going to be a bit of a hurdle.
Smart glasses make recording less intrusive and more natural, but they also make it easier to cross boundaries undetected. So, it’s best to be polite: respect people in public places, respect personal space, and be careful what you film in private and public spaces—photographing your food and friends is cool, but not strangers. A mistake probably won’t land you in jail, but being labeled “that bastard with the damn meta glasses” could ultimately lead to a much worse fate.