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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

We are entering an era where personal, wearable video recording devices are about to become ubiquitous. &nbsp;It's already a given that surveillance cameras are everywhere in modern-day public life, from stores to gas stations to street corners to traffic lights. &nbsp;Those are so small as to be barely visible anymore, and we rarely even think about them. &nbsp;We've also come to accept that everyone we meet is likely to be carrying a video-equipped cell phone that they can pull out at any moment.

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But the newest recording devices are ones that we wear on our persons. &nbsp;I've already&nbsp;been toying with the <a href="http://looxcie.com/" target="_blank" rel="noreferrer noopener">Looxcie</a>, an over-the-ear camera that doubles as a bluetooth headset. &nbsp;One click of a button transfers its video feed to Facebook, or broadcasts what I'm seeing to my friends, live.

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Just around the corner, though, are augmented reality eyeglasses. Most of the buzz surrounding these devices centers on the digital images that they overlay onto the user's field of view. &nbsp;Less discussed so far, however, is the fact that, in order to truly augment the user's vision, the eyeglasses need to also see (and recognize) what the user sees. &nbsp;Thus, every prototype of AR eyewear that we've seen to date includes an integrated, forward-facing video camera. &nbsp;Google has already published the <a href="http://cdn.ientry.com/sites/webpronews/pictures/charlieroseglass_616.jpg" target="_blank" rel="noreferrer noopener">first still image</a> and <a href="http://www.theverge.com/2012/5/25/3042676/google-glass-first-video-sample" target="_blank" rel="noreferrer noopener">first video </a>clip&nbsp;recorded by its Project Glass prototype.

Project Glass likewise made the news recently when Google's co-founder allowed&nbsp;California Lieutenant Governor Gavin Newsom to wear the prototype during a TV interview. &nbsp;Newsom later <a href="http://www.wired.com/gadgetlab/2012/05/sergey-brin-finally-lets-someone-else-wear-google-glass/" target="_blank" rel="noreferrer noopener">told Wired</a>, “You can easily forget you have them on, and sense the capacity of use in the future," adding the headset felt incredibly light, comfortable and inconspicuous on his head.[*]

Presumably, that will be the aim of all AR eyewear manufacturers--indeed, all wearable video recorders of any type. &nbsp;If customers are going to be persuaded to wear the devices, they will need to be comfortable, inconspicuous, and not embarrassing to wear in public. The devices are <a href="http://www.theverge.com/2012/5/25/3042684/google-project-glass-video-sample#" target="_blank" rel="noreferrer noopener">intended</a> to "let technology get out of your way" so the user can record life while still participating in it. &nbsp;All of which has fantastic upsides, and is something I've already enjoyed; I've made great, hands-free videos of my kids with my Looxcie while continuing to play with them, rather than pull out my camera and separate myself from the experience.

But there are also easily foreseeable downsides to forgetting you're wearing a video camera on your head. &nbsp;I wore my Looxcie during a recent augmented reality conference, to underscore the talks I gave there about (among other things) this very subject. &nbsp;Even in that crowd--who are the movers and shakers in the industry that will produce these devices--I got a number of odd looks, turned heads, and derailed conversations.

Not everyone was put off, of course. &nbsp;Here's an encounter I had with ARE co-organizer Chris Grayson of Humble Media. &nbsp;Though initially caught off guard by my experiment, he explains why he has personally already come to grips with the world of ubiquitous video recording:

<a href="http://www.youtube.com/embed/Al8F4MtOsk8" target="_blank" rel="noreferrer noopener">http://www.youtube.com/embed/Al8F4MtOsk8</a>

But accidents happen. &nbsp;Even I forgot I was wearing it times, and I ended up accidentally recording (and later deleting) at least one conversation that was supposed to be private.

Recording private conversations--either mine or one that I happen to overhear--is bad enough. &nbsp;But what if I had forgotten I was wearing the camera when I walked into a public bathroom, and recorded myself or someone else in a compromising position? &nbsp;Or worn it (accidentally or intentionally) into any other setting in which people expected privacy, such as a family home, bedroom, or church? &nbsp;Or read a confidential document or email? &nbsp;And worse, what if, instead of being set to merely record, my device was live-streaming to Facebook or some other audience?

The list of potentially private settings goes on indefinitely, and with each example comes ways in which secret recording could potentially give rise to legal liability. &nbsp;The following are some of the most common causes of action[**] to which such circumstances could give rise:

Intrusion Into Seclusion. &nbsp;This common law tort occurs when someone&nbsp;&nbsp;intentionally intrudes upon the private space, solitude, or seclusion of a person, or the private affairs or concerns of a person, if the intrusion would be highly offensive to a reasonable person. &nbsp;The classic example is a secret video camera installed in a changing room or bedroom. The tort occurs upon recording; no publication is necessary.

Publication of Private Facts. &nbsp;This separate cause of action arises when someone publicly disseminates&nbsp;little-known, private 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. &nbsp;The typical examples here include private health and intimate sexual information. &nbsp;The same facts may also be protected from disclosure by HIPAA and other medical privacy statutes.

False Light. &nbsp;Like defamation (a.k.a. libel or slander), this is a tort designed to protect a person's reputation--except that, unlike those other causes of action, false light deals with the publication of information that, while potentially true in some respects, is communicated in a manner that conveys something false. &nbsp;It requires a publication made with actual malice that places the plaintiff in a false light and would be highly offensive to a reasonable person.

Eavesdropping. &nbsp;This can be a tort, a criminal statute, or both. &nbsp;It involves making an audio or video recording of other peoples' conversation under circumstances in which they had a reasonable expectation of privacy. &nbsp;The most recent and highly publicized example was the case of now-former Rutgers student&nbsp;Dharun Ravi, who was sentenced to 30 days in jail for using his webcam to secretly record and broadcast his roommate's intimate encounter.

Law Enforcement Violations. &nbsp;In 2009, San Jose police experimented with wearing over-the-ear personal video recorders while on duty. &nbsp;As with dashboard cameras, the intent was to preserve critical evidence and promote officer accountability. &nbsp;Depending on the circumstances in which they're used, however, such cameras could constitute violations of the Fourth Amendment to the U.S. Constitution. &nbsp;That amendment protects&nbsp;&nbsp;"the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" without a warrant issued on the basis of probable cause. &nbsp;Cameras could be potentially used to gather private information without a warrant.

Notice that none of the causes of action listed above tell you specifically what is and isn't private. &nbsp;Rather, that is necessarily a case-specific inquiry. &nbsp;It depends on what the law considers reasonable under all of the circumstances of any given situation. &nbsp;There are a few bright lines; certain intimate information or situations are presumptively private.

But most of the time, where the lines are is up for debate. &nbsp;And they constantly shift. &nbsp;Thirty years ago, for example, we may have reasonably expected not to be filmed while grocery shopping. &nbsp;Today, we cannot enter a retail store, or virtually any other building, without being covered by literally hundreds of hidden security cameras--a state of affairs we have come to quietly accept as a society.

It seems clear, though, that the proliferation of wearable video recorders will very soon push the limits of what we currently consider to be private. &nbsp;There will be a number of well-publicized incidents in which people are accidentally or intentionally recorded doing embarrassing things. &nbsp;Lawsuits, and calls for regulation, will follow. &nbsp;Where the lines will be drawn after the dust settles remains to be seen.

Privacy activists and people who are interested or involved in mobile video industries will want to have a voice in that debate, and it's not too soon now to speak up.

[*] - Once again, as I've said before, this is an article about wearable recorders in general, not about any one device or manufacturer. &nbsp;Glass happens to be the device that a lot of people are talking about right now, but the same concerns will apply to the entire class of devices. &nbsp;It's also worth noting that, unlike the Looxcie and some other devices, Glass's recording function does NOT remain on automatically; the user has to turn it on, just like with a smartphone. Moreover, it's the users, not necessarily the manufacturers, who will be putting themselves at risk of legal exposure, depending on how they choose to use the products.

[**] - Not all states recognize each cause of action, and some of their particulars may vary slightly between jurisdictions.

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Brian D. Wassom

Information Technology Transactions

Invading Privacy With Wearable Video Recorders and AR Eyewear

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Invading Privacy With Wearable Video Recorders and AR Eyewear

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