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Through the Looking “Glass”: Google Glass Creates a New Legal Wonderland

By: Aaron Krowne

You may have heard quite a bit of buzz about “Google Glass” in the past few years – and if you aren’t already intimately familiar with it, you probably at least know it is a new technology from Google that involves a “computer and camera” grafted onto otherwise standard eyeglasses. Indeed, this basic picture is correct, and itself is enough to suggest some interesting (and to some, upsetting) legal and societal questions.

What is Google Glass?

Google Glass, first released in February 2013, is one of the first technologies for “augmented reality” aimed at the consumer market. Augmented reality (“AR”) seeks to take a “normal experience” of the world and add computerized feedback and controls, which enable various ways for users to “get more” out of whatever activity they are engaged in. Before the release of Google Glass, this type of technology was mostly limited to the military and other niche applications. AR is in contrast to typical, modal technology, which requires users to (at least intermittently) “take a break” from the outside world and focus exclusively on the technology (e.g., periodically checking your cell phone for mapping directions). This stands in contrast to more well-known virtual reality, which seeks to simulate or entirely replace the outside world with a generated, “real-seeming” one (e.g., a flight simulator). AR technology isn’t entirely alien to consumers either; a simple form which is not new to the consumer market is voice interaction on smartphones (e.g., SIRI on the iPhone) – but Google Glass takes AR to another level.

Google Glass is indeed “glasses with a computer and camera” on them, but also, importantly, has a tiny “heads up display” (screen), viewable by the wearer on the periphery of one lens. The camera allows the wearer to capture the world in snapshots or video, but more transformatively, allows the computer to “see” the world through the wearer’s eyes and provide automated feedback about it. The main page of Google Glass’s web site gives a number of examples of how the device can be used, including: hands-free heads-up navigation (particularly useful in non-standard settings, such as cycling or other sports), overlaid instruction while training for sports (e.g., improving one’s golf swing by “seeing” the correct swing), real-time heads-up translations (e.g., for street signs in a foreign country), useful real-time lookup functions such as currency conversions, overlaid site and landmark information (e.g., names, history, and even ratings), and, simply, a hands-free version of more “conventional” functions such as phone calls, digital music playing, and instant messaging. This list only scratches the surface of what Google Glass can do – and surely there are countless other applications that have not yet been imagined.

Until April 2014, Google Glass was only available to software developers, but now it is available to the consumer market, where it sells for about $1,500. While it is tempting to write off such new, pricey technology as of interest mostly to “geeks,” the capabilities of Google Glass are so compelling that it is reasonable to expect that it (and possibly “clones” developed by other manufacturers) will enter considerably more widespread (if not mainstream) use in a few short years. After all, this is what happened with cell phones, and then smartphones, with historically-blinding speed. Here, we will endeavor not to be “blinded” by the legal implications of this new technology and provide a brief summary of the most commonly referenced societal and legal concerns implicated by Google Glass.

Safety Issues

An almost immediate “gut” concern with a technology that inserts itself into one’s field of view is that it might be distracting, and hence, unsafe in certain situations; most worryingly, while driving. It is often said that the law lags behind technology; but as many as eight states are already considering legislation that would restrict Google Glass (or future Glass-like devices) while driving. Indeed, the law has shown that it can respond quickly to new technology when it is coupled with acute public concern or outrage; consider the few short years between the nascent cell phone driving-distraction concerns of the mid-2000s and the now near-universal bans and restrictions on that sort of use.

More immediately, while some states that do not have laws that explicitly mention technologies like Google Glass, their existing laws are written broadly enough (or have been interpreted such as) to cover the banning of Google Glass use while driving. For example, California’s “distracted driving” law (Cal. Vehicle Code S. 27602), covers “visually displaying […] a video signal […] visible to the driver,” which most certainly includes Google Glass. This interpretation of the California law was legally confirmed in the recent Abadie case, where the law was affirmatively applied to a San Francisco driver who had been cited for driving while wearing Google Glass. However, lucky for the driver in the Abadie case, the ticket was dismissed on the grounds that actual use of Google Glass at the time could not be proven.

Are such safety concerns about distraction well-founded? Google and other defenders of Google Glass counter that Google Glass is specifically designed not to be distracting; the projected image is in the wearer’s periphery which eliminates the need to “look down” at some other more conventional device (such as a GPS unit or a smartphone).

The truth seems to be somewhere in the middle, implying a nuanced approach. As the Abadie case guides, Google Glass might not always be in use, and therefore, not distracting. And per the above, Google Glass might even reduce distraction in certain contexts and for certain functions. Yet, nearly all states have “distraction” as a category on police traffic accident report forms. Therefore, whether or not laws are ultimately written specifically to cover Google Glass-type technology, its usage while driving has already given rise to new, manifest legal risks.

Privacy Issues

The ability to easily and ubiquitously record one’s surroundings naturally triggers privacy concerns. The most troubling privacy concern is that Google Glass provides private citizens with the technology to surreptitiously record others. Such concerns could even find a legal basis in wiretapping laws currently on the books, such as the Federal Wiretap Act (18 USC S. 2511, et seq.), which prohibits the recording of “oral” communications when all parties do not consent. This law certainly applies to Google Glass and any other wearable recording device, much as it does with non-wearable recording devices.

There are other privacy concerns relating to the sheer ubiquity of recording: e.g., worry for a “general loss of privacy” due to the transformation of commonplace situations and otherwise ephemeral actions and utterances into preserved, replayable, reviewable, and broadcastable/sharable media. An always-worn, potentially always-on device like Google Glass certainly seems to validate this concern and is itself sufficient to give rise to inflamed sentiments or outright conflict. Tech blogger Sarah Slocum learned this lesson the hard way when she was assaulted at a San Francisco bar in February 2014 for wearing her Google Glass inside the bar.

Further, Google Glass provides facial recognition capability, and combined with widespread “tagging” in photos uploaded to social media sites, this capability does seem to add heft (if not urgency) to the vague sense of disquiet. Specifically, Google Glass in combination with tagging would appear to make it exceedingly easy (if not effortless) for identities to be extracted from day-to-day scenes and linked to unwitting third parties’ online profiles – perhaps in places or scenarios they would not want family, employers or “the general public” to see.

Google Glass’s defenders would reply to the above concerns by pointing out that the device isn’t particularly unobtrusive, so certainly one cannot actually “secretly” record with it. Further adding to its “obviousness,” Google Glass displays a prominent blinking red light when it actually is recording. Additionally, Google Glass only records for approximately ten seconds by default, and can only support about 45 minutes of total recording on its battery, making it significantly inferior to dedicated recording or surveillance devices which have long been (cheaply) available to consumers.

But in the end, it is clear that Google Glass means more recording and photographing will be taking place in public. Further, the fact that “AI” capabilities like facial recognition are not only possible, but integral to Google Glass’s best intended use, suggests that the device will be “pushing the envelope” in ways that challenge people’s general expectation of privacy. This envelope-pushing is likely to generate lawsuits – as well as laws.

Piracy Concerns

Another notable area of concern is “piracy” (the distribution of copyrighted works in violation of a copyright). Because Google Glass can be worn all the time, record, and “see what the wearer sees,” it is inherently capable of easily capturing wearer-viewed media, such as movies, art exhibits, or musical performances, without the consent of the performer and copyright owner. In such situations, consumer recording devices are often restricted or banned for this reason.

Of course, recording still happens – especially with today’s ubiquitous smartphones – but the worry is that if Google Glass is “generally” permitted, customer/viewer recording will be harder to control. This concern was embodied in a recent case where an Ohio man was kicked out of a movie theater and then questioned by Homeland Security personnel (specifically, Immigration and Customs Enforcement, which investigates piracy) for wearing Google Glass to a movie. The man was released without charges, as there is no indication the device was on. But despite the fact that this example had a happy ending for the wearer, such an interaction certainly amounts to more than a minor inconvenience for both the wearer as well as the business being patronized.

Law & Conventions

Some of the above concerns with Google Glass are likely to fade as social conventions develop and adapt around such devices. The idea of society needing to catch up with technology is not a new concept – as Google’s Glass “FAQ” specifically points out, when cameras first became available to consumers, they were initially banned from beaches and parks. This seems ridiculous (if not a little quaint) to us today, but it is important to note that even the legal implications of cameras have not “gone away.” Rather, a mixture of tolerance, usage conventions, non-governmental regulatory practices and laws evolved to deal with cameras (for example, intentionally taking a picture that violates the target’s reasonable expectation of privacy is still legally-actionable, even if the photographer is in a public area). The same evolution is likely to happen with Google Glass. If you have questions about how Google Glass is being used by, or effecting, you or your employees, or have plans to use Google Glass (either personally or in the course of a business), do not hesitate to consult with one of OlenderFeldman’s experienced technology attorneys to discuss the potential legal risks and best practices.