“Don’t Tase Me, Bro!”: Legal implications of new technology devices on individual privacy interests

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Editor’s Note: The Campbell Law Observer recently held its write-on competition for the Fall 2013 semester.  Students were given a suggested topic involving the potential legal implications of Google’s latest wearable tech product: Google Glass.  Four articles will be published over the next two days demonstrating the various ways in which the latest and greatest in technology can impact society.

There is no denying it: we live in a digital, globally connected society, and it is getting smaller.  In an age in which technological advances seem to outpace supply and demand, today’s hot new gadget will be forgotten tomorrow.  Even new models of old favorites are unimpressive to us nowadays.  The iPhone 5S?  Yawn.  The Surface RT tablet?  I mean, I guess I liked the commercial….  Let’s face it: we are spoiled and jaded, collectively suffering from techie-ADD.

But what’s that you say?  There’s something out there that’s actually… new?  Wait a minute, Doc.  Are you telling me that you built a time machine out of a DeLorean?  Enter Google Glass and Samsung’s Galaxy Gear, two new models representing one of the latest advances: wearable technology.

These devices are masked as accessories but still offer the “lazy” millennial generation all of the technological luxuries to which it has grown accustomed.

Smarter than your average titanium eyewear, Google Glass’s capabilities include hands-free, voice-activated navigation, web search and streaming capabilities, and video and still cameras.  Samsung’s new smartwatch, the Galaxy Gear, was developed to complement the Galaxy Note smartphone and offers many of the functionalities of its counterpart.

The excitement and anticipation surrounding wearable technology in a society such as ours is understandable.  These devices are masked as accessories but offer the “lazy” millennial generation all of the technological luxuries to which it has grown accustomed.  It does not require much imagination to conceive of ways that this type of technology would be useful and attractive both to a private citizen and to a business.

With rapid changes, however, come growing pains, as history has proven time and again. Indeed, many of science and technology’s greatest advances have had unexpected, lasting social effects.  Take, for instance, the television: the arena of American politics would never be the same after John F. Kennedy and Richard Nixon brought the 1960 presidential debate to the TV screen.  The automobile provides a more sobering example: according to a recent MIT study, more Americans are killed each year by car pollution than by car accidents.

There is, of course, a similarly sinister side of the developing story of new technology, the full picture of which remains to be seen.  One need only look so far as the U.S. government for two controversial examples of new technology’s seedier potential: the covert development and use of drone warfare in the Middle East and a recently declassified domestic surveillance project through which the National Security Agency tracked American citizens’ cell phones.

 In the wrong hands, even seemingly innocuous devices such as Google Glass and the Samsung Galaxy Gear have the potential to cause grave damage to an individual’s right to privacy.

Even ignoring these extreme scenarios, new technology devices raise serious legal and ethical questions, especially pertaining to individual privacy interests.  In the wrong hands, seemingly innocuous devices such as Google Glass and the Samsung Galaxy Gear have the potential to cause grave damage to an individual’s right to privacy. 

Cameras, now a standard feature on even the most basic of cell phones, have long been a privacy concern accompanying handheld technological devices.  Congress passed the Video Voyeurism Prevention Act of 2004 in recognition of the potential threats to personal privacy posed by camera phones.  Similar privacy concerns have also forced private industries—such as fitness clubs—to address this issue.  Some gyms have attempted to enforce locker room cell phone bans, but such measures have been largely unsuccessful due to individuals’ unwillingness to surrender their phones.

A camera is such a simple feature that it seems almost laughable to term it “technology,” given the ubiquity and impressive capabilities of smartphones today.  Still, the existence of “pornographic mobogs,” websites to which cell phone users upload pictures they snap of unsuspecting and often non-consenting people, is evidence of how difficult it is to control such infringing behavior.

So-called “revenge porn” sites add another wrinkle to the problem of the increasing prevalence of cameras.  These websites provide outlets for bitter exes to punish and humiliate past lovers by sharing their identifying information and intimate photographs.  Some women who have found themselves the unwilling stars of such sites have reported that they have been stalked or lost jobs as a result.  Ironically, it is likely that many of the victims of revenge porn originally consented to the explicit photos that wind up on these websites.  They may even have snapped and sent the compromising pictures from their own cell phones.

It is certainly true that mobile communication comes with specific liabilities, and all transmissions should be made with a “TEXT AT YOUR OWN RISK” caveat.  It is difficult, however, to believe that the victims of these vindictive and horribly invasive websites could have fathomed the deep, lasting damage that one text message might cause.  An intimate text message does not vest the recipient with unspoken authorization to share its contents with the entire internet.

In this golden age of social media, devices of new technology have made mobile streaming of a private citizen’s most embarrassing moments all too easy.

Although the pervasive effects of social media may create personal privacy problems, not all of them are wholly sympathetic.  It is hard, for example, to make a case for the Facebook “oversharer,” the guy who updates his status every half hour and posts pictures of every single mundane detail of his life.  Used as a platform to expose others’ lives, however, web services such as Facebook, YouTube, Instagram, and others pose very real threats to individuals’ privacy rights.

In this golden age of social media, new devices have made mobile streaming of a private citizen’s most embarrassing moments all too easy.  Consider, for example, twenty-one-year-old Andrew Meyer, the University of Florida student whose dramatic arrest went viral.  On September 17, 2007, Meyer participated in an on-campus Q&A session with Massachusetts Senator John Kerry.  Wishing to film his conversation with Kerry, Meyer handed a video camera to a nearby stranger and asked her to capture the exchange.  After Meyer became boisterous, police subdued him with Taser guns and put him under arrest.  The woman who recorded his arrest uploaded the video to YouTube, where it quickly went viral.  The video, which sparked intense national debate on free speech and police brutality, is still available for viewing on YouTube.  More than seven million viewers have since watched him yell, “Don’t Tase me, bro!”

Bearing in mind those privacy concerns previously implicated by cell phones, consider now that a device like Google Glass would go one step further. It is much easier to surreptitiously film a person with a voice-activated device than one that requires the photographer to point and click, as does a cell phone.  By contrast, a Google Glass user need only say, “Take a picture.”  Further, Google Glass developers may even be able to work around Google’s privacy protections and offer a “wink” feature to sneaky photographers looking to capture unwitting subjects, rather than requiring a voice-activated command.

Gadgets such as the Samsung Galaxy Gear may also threaten individuals’ rights to privacy through their syncing with certain applications.  The Galaxy Gear, for example, is marketed as a smartwatch on which users may track fitness and nutrition goals.  This functionality is great in theory.  However, the development of these types of wearable technology has outpaced the necessary policy considerations.  The FDA has reported that it has future plans to monitor applications that mine individual users’ medical data, but such programs are currently unregulated.  As a result, there is a potential for a user’s private data to end up being used against him in cruelly ironic ways as he attempts to lose weight—such as, for example, by companies that have the power to customize insurance rates based on a user’s eating habits.

 Just because we can… should we?

In a world that grows smaller every day through the advances offered by devices of new technology, an individual’s right to privacy is paramount.  Indeed, as society hurtles forward at break-neck speed to embrace exciting technological advances, it is necessary that we stop every so often to consider the moral and ethical dilemma that has accompanied so many of history’s most important advances: just because we can do this, should we?