by Paul Alan Levy
Scott Cleland’s weekly anti-Google rant raises the question whether Google’s recording of conversations through Google Glass, and Google’s use of those recordings as a source of data for its commercial operations, might run afoul of federal wire-tapping laws that require consent for the interception of communications, but it seems to me that he has missed an even more serious issue. Many states require the consent of all parties to a conversation—at least, conversations not occurring in public situations—and provide both criminal penalties and a civil cause of action for damages and injunctive relief when communications are recorded without consent by all participants.
Even apart from Google itself, which could be liable for its storage and use of the recordings, wouldn’t each individual wearing Google Glass be liable for the interception as well?
But that is your your conversation with your friend. Your Google Glass is also picking up my conversation with my friend, and I don’t consent to that. It’s microphone may be more sensitive and discerning (less selective) in what it is recording… It’s only later you replay it that you work out you just heard a scoop that could better a mate’s chances of getting a job (whatever). The conversation has always been there, now it is just the degree of intrusion and playback.
There’s a precedent of sorts in the world of telephones. Old-style recording devices generated a beep of specified duration at specified intervals. People who hear the beep have been notified that the conversation is being recorded and are assumed to have consented if they continue the call.
I think we need something like this for Google Glass and other portable devices that can record conversations. If you see the Google Glass and are at normal conversational distance from the wearer, you should assume that you are being recorded.
Until the laws get fixed, however, this could be a problem. Or the courts may “fix” them by taking “judicial notice” of the fact that damn near everybody knows what a Google Glass looks like and are aware that they record both video and audio.
Dan Steinberg questions whether Google would face liability, comparing it to a store or manufacturer that supplies a device used for recording. But Google does more than supply the device: it also stores the data, and uses that data for its own commercial purposes. http://epic.org/privacy/google/glass/default.html
“Woody Weaver” suggests that anybody who sees someone appear wearing Google glass should bloody well know they are being recorded. But even if we assume such knowledge, which I doubt, the statutes in the all-party consent states require more than notice: they require consent.
I live in one of those ‘all consent’ states. State law says
“Except as otherwise specifically provided in this subtitle it is unlawful for any person to: (1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;”
Google glass seems to be capturing oral conversations, so this would seem to apply. The escape clause:
“(3) It is lawful under this subtitle for a person to intercept a wire, oral, or electronic communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State.”
But it is google glass. I’d have to be living in a cave to not know that when some geek comes up to me with a heavy bar over his right eyepiece and earbuds tucked in that he’s recording things. As long as he doesn’t try to blackmail me with it, I’d suggest he has a good argument that I consented. If I don’t consent, I can ask him to turn it off or leave — consider http://www.abajournal.com/news/article/restaurant_ejects_diner_who_insisted_on_wearing_google_glass1/ — I think there is a reasonable perspective that such things are inappropriate in ordinary public surroundings where people are trying to relax.
But surely this isn’t new. When I’m at a child’s softball game and some parent is going nuts with his video camera, aren’t we in the same situation? Don’t we tolerate it without invoking Federal wiretap?
I can see individual liability but I’m having a hard time finding against Google (much as I’d love to on this one). This would be akin to finding against RadioShack when someone recorded a phone call without consent by all parties. Or finding against the manufacturer of tape recording devices used in general.
That said, the possibility of a finding against an individual wearing Google Glass might be as much of a deterrent as the threat against the mother.glass…