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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

Remember the good old days--like, last year--when all that most companies needed to know about their employee's social media activity is that the company should have a policy about it? &nbsp;Well, those halcyon days are long gone. &nbsp;Now it's only a matter of days before thousands of newly minted "Google Explorers" start wearing their Google Glass digital headsets everywhere. &nbsp;And it won't be much longer than that before Microsoft, Apple, Vuzix, and a host of other manufacturers release their own digital eyewear. &nbsp;(This year's <a href="http://augmentedworldexpo.com/" target="_blank" rel="noreferrer noopener">Augmented World Expo</a>, for example, will feature no fewer than 10 eyewear manufacturers.) &nbsp;Wearable computing is about to become a fact of everyday life, including in the workplace.

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Let me be clear--I'm an enthusiast of these and other "augmented reality" technologies. &nbsp;I applied to be a Google "<a href="http://torontostandard.com/article/google-announces-first-winners-of-glassexplorer-contest" target="_blank" rel="noreferrer noopener">Glass Explorer</a>" myself, and I'm still bummed that I wasn't chosen. &nbsp;I accept as given the fact that "AR" and other wearable computing devices will soon be ubiquitous throughout society, and in many respects that's exciting. &nbsp;But one reason I wanted a Glass headset of my own was to help people start coming to grips with the fact that we are going to have to have serious conversations about when and where devices like this should be regulated. &nbsp;And one context that calls for examination is in the workplace.

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The primary concern stems from the device's ability to record the user's surroundings in real time, both in audio and video. &nbsp; &nbsp;Wearable computing pioneer Steve Mann has <a href="http://en.wikipedia.org/wiki/Sousveillance">coined</a> the word "sousveillance" to describe such "recording of activity by a participant in the activity," or "inverse surveillance." &nbsp;Federal and state law, however, have other words that users and employers alike should be more concerned about, such as "eavesdropping," "invasion of privacy," and even "corporate espionage."

Let's start with video recording. &nbsp;One of the selling points of digital eyewear (and of similar devices already on the market, such as the <a href="http://www.looxcie.com/" target="_blank" rel="noreferrer noopener">Looxcie</a> bluetooth headset) is that they can be "always on," capturing video of whatever the user is looking at so that those unrepeatable experiences won't be missed by fumbling around for a video camera. &nbsp;Both devices also have a "broadcast" feature (Looxice via Facebook, Glass via Google Hangouts) that allows others in remote location to see what the user sees in real time.

But some people who have no problem with you looking at them will object to you recording them. &nbsp;For example, some of the first establishments to already ban Glass have been <a href="http://www.forbes.com/sites/davidthier/2013/04/09/google-glass-wont-be-allowed-in-strip-clubs/" target="_blank" rel="noreferrer noopener">strip clubs</a>. &nbsp;Even workplaces that aren't clothing-optional have plenty of places in which individuals expect privacy--such as bathrooms, corporate meetings, and closed-door offices. &nbsp;Recording someone in a place where they have a reasonable expectation of privacy is called "eavesdropping," which is punishable as a felony in many jurisdictions, and can create civil liability for invasion of privacy in any court.

Also a concern are the documents and computer screens that employees look at every day. &nbsp;Merely by glancing at confidential documents, an employee wearing a sousveillance device could inadvertently braodcast its contents to the world.

Then there's the audio component. &nbsp;The human ear has a marvelous ability to pick one voice out of a crowd and focus on it, ignoring all other conversations. &nbsp;Recording devices don't do that. &nbsp;They pick up everything within earshot, even the confidential conversations that someone wearing a recording device may not even realize they're hearing.

In addition to their use as recording devices, digital eyewear poses serious concerns as a source for employee distraction. &nbsp;The reflexive reaction of many employers in the first wave of social media policies was to ban access to Facebook and other social sites for exactly this reason, out of fear that workers would lose all productivity and simply be sucked into reading status updates all day. &nbsp;This remains a valid concern, even though most workplaces have begun to tolerate limited social media use in the same way that their forefathers learned to cope with personal telephone calls. &nbsp;But having attractive content in a browser tab on your computer monitor is one thing. &nbsp;Having that content constantly dangling in your field of vision (as happens with Glass and other digital eyewear), is another thing entirely. &nbsp;Employees could sit in on meetings and be on Facebook the entire time, literally without anyone else knowing. &nbsp;(Or worse; a significant percentage of people discussing Glass online today are those who can;t wait to watch porn 24/7. &nbsp;Some of those people will be in the workplace, which will further test workplace policies against the consumption of such content on the premises.)

So what can employers do? &nbsp;It seems inevitable that the overwhelming majority of employers will begin by banning digital eyewear in the workplace, just like they did with Facebook before it. &nbsp;The Joy of Tech comic strip captured all of the foregoing analysis in four simple frames (called "<a href="http://tapastic.com/episode/2058" target="_blank" rel="noreferrer noopener">The reality of Google Glass</a>") not long ago. &nbsp;It depicted a workplace abuzz over a co-worker's new Google Glass headset. &nbsp;By Day Two, the excitement had waned, however, and on Day Three the employee asks, "Why are you all avoiding me?" &nbsp;A co-workers responds from his cubicle: "We don't want our pictures and everything we do uploaded to the 'Net all the time" &nbsp;Another says: "Besides, you don't work anymore! All you do is stare into space and grunt!" &nbsp;By Day Four, the employer has posted a sign banning Glass from the workplace.

There are even handy <a href="https://encrypted-tbn3.gstatic.com/images?q=tbn:ANd9GcRWOUkKPJtOmfvfuF1VNSP5tk8aIo1SXzkoeMfNuL3NnaslSTm_GQ" target="_blank" rel="noreferrer noopener">signs</a> already available under Creative Commons license available for download informing employees and patrons that Glass is banned from the premises. &nbsp;But it won't be that simple for long. &nbsp;Exactly like cell phones and social media websites, it will not be long before AR glasses mature from consumer novelty into enterprise solution. &nbsp;Developers have long touted digital eyewear for use in architecture, assembly line manufacturing, auto repair, and more. &nbsp;It may not be long before your employees rely on three-dimensional digital displays rather than instruction manuals to learn and perform their daily jobs. &nbsp;Commercial drivers already rely on GPS devices for navigation; heads-up display of Google Maps is already a feature of the Glass prototype. &nbsp;The privacy and other concerns that come with sousveillance devices may soon become yet another inevitable and manageable risk of going to work.

But these issues are upon us, here and now. &nbsp;Corporate counsel: it may be time to dust off the social media policy and insert a section on "sousveillance devices." &nbsp;[Incidentally, the Model Social Media Policy that&nbsp;<a href="http://www.honigman.com/services/xprServiceDetailHon.aspx?xpST=ServiceDetail&amp;service=337" target="_blank" rel="noreferrer noopener">my firm</a>&nbsp;offers its clients addresses these issues.]

Augmented Legality

Emerging Media and Technologies

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Brian D. Wassom

Information Technology Transactions

Does Your Workplace Have a Sousveillance Policy?

Warner Norcross + Judd LLP is responsible for the contents of our advertising and this website. Please read our full <a href="/privacy-policy/" aria-label="see privacy policy">privacy policy</a> available on our website. If you have any questions or comments about our website or our Privacy Policy please contact us at <a href="mailto:info@wnj.com">info@wnj.com</a> or 616.752.2000.

Does Your Workplace Have a Sousveillance Policy?

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