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Google Glass, Recordings, and the Law

January 22nd, 2014
By Jeff Welty

CNET is reporting that an Ohio man went to a movie theater wearing Google Glass. Halfway through Jack Ryan: Shadow Recruit, an FBI agent approached him, flashed a badge, took his Google Glass, and ordered him out of the theater. Several agents questioned the man about whether he was recording the film, which the man denied. Eventually, the agents connected the Google Glass to a laptop, downloaded the contents, and determined that the man had not recorded the film. He was released.

Wearable computing is here. It isn’t just Google Glass, which is still available only to a chosen few. Recon has a rival product. Every snowboarder seems to have a Go Pro camera on his or her helmet. Fitbit and other companies have wrist-based fitness tools. More and more police officers are wearing “badge cams.” (Some are also experimenting with Google Glass.) These new technologies raise a plethora of legal issues, as I noted in a previous post. This post will start by looking at the legal issues raised by wearable recording devices.

  1. Wiretapping and surveillance laws. Under North Carolina law, the consent of one party is sufficient to record a conversation. G.S. 15A-287. Therefore, a Glass wearer can record any conversation to which he or she is a party. But Glass might also be used to record a conversation to which the wearer is not a party – for example, a conversation taking place at the next table in a restaurant. Such surveillance likely would be a Class H felony. Id. Furthermore, in some states, all parties to a conversation must consent to recording. This raises the question of whether one implicitly consents to being recorded by engaging in a conversation with a Glass wearer. The Consumer Law and Policy Blog ponders the issue here, and Fox News interviews several experts here. Additional concerns might arise when Glass is used to record police activity, as some jurisdictions have special rules regarding recording the police. (I discussed some of those rules here.)
  2. Intellectual property laws. As the Ohio movie theater incident illustrates, the recording capability of Glass creates both intellectual property concerns and questions about how to enforce intellectual property rights. Should Glass be allowed in movie theaters, at art galleries, and at concerts? If Glass is allowed, but recording is prohibited, does the fact that a person is wearing Glass provide probable cause to believe that the person is recording? And if so, may officers simply confiscate and search a wearer’s Glass under the exigent circumstances exception to the warrant requirement?
  3. Driving laws. Using Glass to record one’s morning commute appears to be lawful, if uninteresting. Using other features of Glass while driving, however, might raise legal issues. Surfing the internet or reading email on Glass might constitute reckless driving under G.S. 20-140. Note that it would not violate North Carolina’s texting while driving law, G.S. 20-137.4A, because that statute refers specifically to using a “mobile telephone” to read emails and text messages. Some states have more specific laws, like California’s law against using a video display in front of the driver’s headrest; a driver who was ticketed under that statute recently had the charge dismissed when the judge found insufficient evidence that the device was in operation. [Update: An astute reader noted that North Carolina has a similar statute, G.S. 20-136.1.]
  4. Other offenses. Glass might facilitate a wide array of offenses. It could enable a criminal to “case” a target residence or business much more effectively. It could facilitate stalking. Using Glass to record one’s sexual activity (yes, there’s an app for that) might, in some instances, violate the obscenity – or even child pornography – laws.
  5. Police use of Glass. We know from Florida v. Jardines that a knock and talk becomes a Fourth Amendment search when an officer brings a drug dog along, because we do not expect, and do not implicitly invite, social visitors to bring such dogs. Do we expect social visitors to come to our homes wearing Glass? We certainly expect them to come carrying cell phones, which are recording devices, but perhaps Glass is different.

The Supreme Court has finally agreed to consider the issue of searching cell phones incident to arrest. Perhaps a decade from now, it will consider a Glass case. In the meantime, it will be interesting to see how the law unfolds.

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5 Responses to “Google Glass, Recordings, and the Law”

  1. Richie Rich says:

    Every Federal court that has been involved with the video and audio recording of police in public has sided with the filmer. Cops want to be able to record without restriction, but want to limit the ability of the public to record them, for the obvious reason that cops so often abuse due process and act in ways that they should be ashamed of, but are not. The police have ZERO expectation of privacy when performing their duties in public, and citizens also have no right to deny someone filming them in public…we lose the right to privacy when we venture out in public.

    The police fight tooth and nail to remain hidden behind a wall of special but not legal privilege and are notorious for stealing cameras and deleting scenes of their crimes and policy violations…thankfully several recent cases have dealt such abuses a blow, with officers being sanctioned or fired for taking ( stealing ) cameras from witnesses to their abuses. Not one Federal court has upheld the ” right ” of police to film and audio record but deny the same to us all, and any local or state violations of these decisions is doomed to fail. The day that the cops can forbid the public from documenting their actions will mean giving carte blanche to the abuses we all know too well that occur when proof of their crimes is forbidden.

    The ONLY reason a cop would want to deny the recording of their actions is because they wish to hide illegal and improper abuses of rights and coercive and intimidating tactics, period. If cops had nothing to hide, they would welcome scrutiny at all times. Since cops use the old ” if you have nothing to hide why not let us search ” line to coerce consent and avoid the warrant requirements, they should be willing to apply the same standard to their actions.

    see: Glik case; the Supreme Court refused to alter the 1st circuits decision that cops have no right to stop recording of police in public. The ABA Journal has full details. So all state and local laws forbidding the oversight we all need to document police actions and abuses are null and void..of course the cops and their unions will keep on violating the law until sued, which should be happening anytime they deny our right to film and record them.

  2. Richard McMahon says:

    This poster is a good example of one of the inherent limitations of blogs. There is no way to block people who are prejudiced and boring, but do not cross the line into indecency. A police officer’s job is extremely dangerous and the vast majority of police officers are honest and dedicated. Our society depends upon them for its very existence. The primary reason that recording of police officers is problematic is their safety. Not all police officers work undercover, but many do. Those that work undercover will also work overtly at times, and visual recording of them can greatly increase the risks to them.

    • Richie Rich says:

      So, we are to be stopped from our 1st amendment rights because some cops want to remain anonymous? If a narc wants to remain anonymous, let him wear a mask, as most do when raiding homes…if he ventures out in public he is fair game. The excuses are so ridiculous…some cop might be recognized, so your rights are forfeit…some cops may take offense at being filmed so stop recording…nonsense. Our society does NOt depend on cops for our existence…society did fine for eons before cops were formalized in society…and most cops show up after a crime has been committed and write reports anyway, few actually stop crimes.We cannot give up our oversight role because some cops choose to work undercover now and then…that is an outrageous excuse. Anyone who trusts the police without reservation is a fool..just google ” police misconduct” sometime and read the horror stories, watch the videos of cops killing people without cause..arresting falsely..and then tell me we should trust them. No way.

      The vast majority of cops will cover up or not report their fellow cops abuses..fact. The majority will abuse due process to get a bust. The majority spend far more time busting petty drug users than pursuing dangerous felons. More arrests were made for petty pot possession last year than for all other categories of crimes combined..sure, some few cops will obey the law, but they are the minority.The rest need constant watching to keep them even partially honest. We cannot stop recording them for any reason. If a cop cannot assume the risks inherent with the job let them find safer work..or not mix undercover work with regular duty..not limit our freedoms for lame excuses…the fact remains that if cops have nothing to hide, they should welcome cameras…if they are narcs or undercover then they accpet the risk of exposure should they blow their cover .

      A cop in Connecticut justy got 30 months in prison for illegally stealing a camera from a priest that was filiming him abuse a citizen, and then lying about it…more sentences for cops abusing the processs might make them realize that they are not above the law, as much as that pains them.

  3. Vince says:

    I do not understand why the wiretapping law is even stated as a problem with glass. It would be a problem with ANY recording device. Also if glass is “probable cause” to search it (don’t know why one needs probable cause and not a warrant), then cell phones should be also. Seriously.

  4. The possibility of Glass running afoul of a no video display in front of the driver headrest is strange. What about GPS or a mobile phone set up in a display position? Also, I know of two Glassware applications that actually facilitate safe driving. Speedhud shows you your speed in a heads up position. Most fighter pilots agree this is better than needing to look inside the cockpit to see your speed. Also, there is a application which purports to detect you falling asleep at the wheel and wake you up. Ask an officer how many accidents they have investigated where falling asleep at the wheel was suspected. Most technologies can be used or abused. We should all strive to be users instead of abusers. If you ban to legislate away the abuse, you stop the use as well. Anyway, I wrote a blog article on this….

    http://www.enlitants.com/?p=91

    Thanks for bringing this legal information to light.

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