In the sixty-four years since George Orwell wrote 1984, technology has advanced at such a rapid clip that his concept of Big Brother seems puny indeed. New technology has enabled the Government to peer into the lives of its citizens to such an extent that were Orwell to rewrite his dystopia today, he would have to give Big Brother a co-conspirator in invading citizens’ privacy: Big Business.
In the novel, Winston Smith constantly looks over his shoulder for the presence of “telescreens,” similar to flat-screen televisions, through which the Government monitors his movements and activities. Today, the average citizen at all times carries with her, wherever she goes, technology that has the potential to be more than the equivalent of these fictional surveillance devices. Google Glass is a technology that allows the user to carry out many applications that are currently available to the users of smartphones, including accessing the internet, getting map directions based on one’s current location, taking pictures, and recording video, all through the use of specially-designed glasses and an operating system managed by Android. With the advent of Google Glass, government entities may be able to see and hear precisely what we do. The legal implications of this technology are potentially legion.
With the assistance of Google Glass, multiple people would be able to share the same vantage point at once.
Despite the potential broadening of government surveillance, Google Glass does have legal benefits. For example, evidence produced through the use of Google Glass could greatly assist courts in mitigating the subjectivity that is inherently present in testimony, particularly in the realm of civil lawsuits. It is axiomatic that perception is reality, that how one views events depends greatly on one’s vantage point at the time of the events. With the assistance of Google Glass, multiple people would be able to share the same vantage point at once: if ruled admissible, Google Glass would enable the jury to see exactly what the person’s situation was as she saw it at the time through the use of video or photographs. This would be highly beneficial in a tort law context, where so much of the legal analysis involves the jury determining what a “reasonably prudent person” would have done under the same circumstances. The jury could better put themselves in the shoes of the person accused of committing a tort by seeing a video of the event in question, and that person’s actions could seem more reasonable through Google Glass evidence.
Google Glass would also benefit other areas of law, such as contract and probate law, in which a person’s intended meaning is of special import. Google Glass would increase the likelihood that the court could find some evidence of what the person believed the terms of a contract to be and what significance was attached to them. Additionally, this technology could be used to clarify what meaning a testator intended the provisions in his or her will to have by increasing the probability that a declaration of the testator’s intent would be captured in some manner. Use of Google Glass evidence in these contexts—again, if ruled admissible—would greatly reduce the negative impact of any ambiguity that might be present in the document at issue.
This technology raises critical Fourth Amendment concerns, particularly when it comes to one’s expectation of privacy.
In addition to its potential evidentiary benefits in civil litigation, the use of Google Glass raises critical Fourth Amendment concerns in the criminal law context, particularly when it comes to one’s expectation of privacy. The Fourth Amendment prohibits police from carrying out unreasonable searches and seizures. Were police and other government officials to seek access to the information produced by a suspect’s glasses, would that require the use of a warrant? The answer is likely to be an overwhelming “yes.”
The claim could be made by investigators, however, that if a person planned on sharing the recorded content by uploading it to YouTube, Facebook, or another website, she could not be said to have an expectation of privacy in its contents. She would in effect be claiming that the content was available for anyone to examine, while simultaneously arguing that it is off-limits for police to do so. On the other hand, the Fourth Amendment was designed to protect the privacy of the individual, her right to be left alone. Google Glass is likely to capture many private thoughts and activities of a suspect.
The Fourth Amendment’s prohibition on unreasonable searches and seizures is complicated by the possibility of remote access to the glasses by law enforcement. A suspect likely would have no idea that she was being searched by police or that anything was being seized, but a violation could still be occurring. The warrant requirement of the Fourth Amendment is intended to prevent police from carrying out searches that lack specificity in what the police are looking for, known as general searches. Requiring a warrant to be obtained by police prevents officers from undertaking “wide-ranging exploratory searches [that] the Framers intended to prohibit.”
Legal analysis of Google Glass would have to confront the classification of the technology.
A Fourth Amendment analysis of Google Glass will have to determine how this equipment should be treated by the law. Case law in most jurisdictions is divided over whether the content of cell phones is searchable by police without a warrant, and similar dilemmas will likely be faced in how the law should treat Google Glass. Legal analysis of Google Glass will have to confront the difficulty that arises from how to classify the technology. Are these devices best thought of as glasses that police could validly search without first obtaining a warrant because they are something worn by the suspect, or are they better thought of as personal computers?
Articles of clothing have been found to be searchable by the police without a warrant as part of the standard process of police placing the suspect in custody. Personal computers, however, are given greater protection from inspection by the police because of the greater expectation of privacy in the contents contained within them, particularly given the substantial likelihood that computers will contain highly personal information. The ease with which Google Glass could be destroyed would create major difficulties for police attempting to safeguard the information that they contain. Police can be justified in carrying out a warrantless search when the officers are concerned that the suspect will destroy evidence.
This technology has the potential for great benefit but also the capacity to cause great harm if placed in the wrong hands.
Not only could the person making the video or taking the picture be subject to an invasion of privacy, but the privacy of a person being filmed or photographed may also be violated. This raises vital policy concerns about safeguarding individuals’ privacy. In order for television producers to film a subject and use his or her image, they must first obtain that person’s consent. An average person taking a picture or making a video using Google Glass, however, would not be under such constraints. If the person using Google Glass were to post the content on the internet, the unwilling subject could be exposed to worldwide publicity. It is doubtful that the subject would be fully aware that he was on camera, and even if he was aware, there would then be very little that he could do in response. This public exposure would continue to be in existence in perpetuity because no data is ever truly deleted from the internet.
Technology is transforming rapidly as the computing power of microchips increases exponentially and the size of the processor necessary to carry out these functions grows ever smaller. What technology has the potential to become is limited only by the imaginations of its collective developers. The legal field must be prepared to engage in a dialogue about Google Glass—and similar technologies—as it emerges because it could impact a tremendous number of areas of law. This technology has the potential for great benefit but also the capacity to cause great harm if placed in the wrong hands.
These changes are coming whether the law is prepared for them or not, and ignoring these technological changes or responding to them reactively will benefit no one. The best time to consider the potential uses for this latest version of the telescreen is not after it has become ubiquitous but rather before it is taken out of the box.