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The nearly universal adoption of smartphones in the late 2000s changed more than how we waste time while waiting in lines. With nearly everyone carrying a high-quality camera and microphone in their pocket—and the ability to instantly broadcast anything to a potential audience of millions—our collective concept of privacy has been permanently altered. If you’re not a little concerned with how what you do in public would play on YouTube, you’re not paying attention.
As smart glasses equipped with cameras and mics edge closer to mainstream adoption, we’re facing another, subtler shift. Unlike smartphones, where it’s obvious when someone is recording, smart glasses can capture video or audio nearly invisibly—raising fresh legal, ethical, and moral concerns. Here’s what you should be aware of, whether you’re currently rocking smart glasses or plan to in the future.
The legality of filming in public
What the general public thinks of as “privacy” may have shifted, but the law may not have kept pace. “Current laws do not provide the protection that most people would probably expect that they should,” says David B. Hoppe, an international transactional lawyer who specializes in emerging legal issues in media and technology.
Some statutes have been written to account for new technology—prohibitions on revenge porn, for instance—but the overarching legal framework concerning privacy was developed for a pre-smartphone, pre-smart glasses world. So let’s dig into it.
A primer on public photography
State and federal laws have criminalized some kinds of recordings in public, like shooting videos up people’s skirts, but in general, the First Amendment provides broad protection of people’s right to take photos and videos of whatever they can see. “In general, our presumption is that capturing photos, videos, or other data from public spaces is unrestricted,” says Eric Goldman, a professor at Santa Clara University School of Law and Co-Director of the High Tech Law Institute.
That presumption applies to smart glasses, so if you’re in a public space, you can usually record what you’d like. “As a general matter, the video function could be used in a public setting,” Hoppe says.
How you use a recording matters, though. “An issue that could arise is whether or not there’s a commercial aspect to its use,” Hoppe says. “In many states there could be an obligation to have cleared the publicity rights from any individuals who are identifiable in the video.”
The meaning of “commercial,” though, can be tricky. Something like filming an advertisement would likely be considered commercial speech and have less legal protection, in terms of privacy, than something like making an art movie for your film class. Somewhere in the middle is earning money from a social media video. Monetizing doesn’t automatically remove legal free speech protection, but it could shift content toward commercial speech, and local filming laws could apply to what you shoot as well. It’s complicated, so if you have any doubts, talk to a lawyer.
Private businesses are a bit different, though
Courts have largely held that a patron in a private business that is open to the public, like a store or a restaurant, can expect more privacy than they have while on a public sidewalk, but less than they’d have if they were somewhere really private, like their home. “It gets into expectations of privacy,” explains Goldman. “A restaurant could be anywhere from family-seating, where that expectation would be unreasonable, to a private booth that has 50 feet in any direction from any other seat, which might be a more reasonable expectation of privacy.”
While a person can generally legally capture images in a business that’s open to the public, it’s within the owners’ rights to prohibit filming. “Normally businesses can set rules for how their customers engage with each other,” Goldman says. “The recourse would be banning you from their premises.”
So if you turn on your Ray-Ban Metas in the gym, you probably won’t be arrested, but the gym could/should have a “no photography” policy that it could enforce by having you banned from the premises and calling the cops if you won’t leave. Of course, recording in private areas of any business, like the locker room of said gym, is illegal everywhere in the U.S.
Video vs. audio recording
Recording sound from a pair of smart glasses could expose you to legal risks that shooting video may not. While images taken in public of anything in plain view are generally legal, audio is a different story. Just like a conversation in a restaurant, the key factor is the “reasonable expectation of privacy.” Two people having a quiet conversation on a park bench likely expect a level of privacy that a guy shouting on a street corner does not.
Courts have largely agreed that recording conversations in public is protected by the Constitution, as long as everyone in the conversation knows they are being recorded and agrees to it. The opposite situation—a third party recording a private conversation without the participants’ knowledge—would often be considered “eavesdropping,” and that’s often a crime.
It gets tricky when only one party consents to a recording. “In general, there are some states that have required that any recording of a conversation between two parties requires the consent of both parties,” Goldman says. “So if the glasses are being used in those conversations, without consent from the other party, that would be a violation in those states.”
Here’s a breakdown of one-party consent states and all-party consent states. If you have any doubts about the legality of a recording, consult with a lawyer, or just don’t hit record.
The other side of the coin: what about the users’ privacy?
Maybe you bought a pair of smart glasses to record your life, but make no mistake: you are the one being recorded. When you click “agree” on that terms of service screen, you could be allowing a big data company to collect your GPS data, biometric data (like eye movements and health information), contact lists, messages, political views, what you see, what you say, who you talk to, and more. And it’s legal because you agreed to it. Usually.
“Some [data collected by your smart glasses] is controlled by contract,” Goldman says. “So Meta would disclose its privacy policies in some disclosure to the consumer, and then those might be the rules that apply. There are some places where there may be limits on the ability of Meta to access that data,” Goldman says.
Bottom line: you have some protections over your personal data that aren’t necessarily signed away with a click. A patchwork of federal laws provide specific protections: HIPAA protects the privacy of your medical records, FCRA protects your credit reports, and other federal laws protect financial information children’s privacy. But more meaningful consumer privacy protection comes from California state law. In the last 10 years, Cali has enacted relatively robust privacy protection laws that give Californians the right to know what personal data companies collect, the right to delete that data, and the right to opt out of their data being sold.
“But I live in Ohio,” you might be saying. First, sorry about that. Secondly, we have your back anyway! Big tech companies have largely adopted California’s privacy laws as their baseline for data collection. So while the amount of data being collected from your glasses isn’t ideal, at least you can claw some of it back.
Exciting new frontiers in privacy invasion
Check out this video of a recent concert from O.G. trip hop band Massive Attack:
The band is turning facial recognition technology on its audience, displaying audience members along with what seems to be their professions. The technology to instantly identify a stranger and scrape publicly available databases on that person is possible with existing technology in smart glasses, and is, in theory, perfectly legal. Even if the person being filmed doesn’t know you’re doing it. Again, how you use information you collect might not be legal.
According to Hoppe, the laws in place just weren’t written with smart glasses in mind. “The basic standard, that comes from common law times, was that if you’re in a public place, you don’t have a reasonable expectation of privacy, but at that point in time—and up until the last two decades—being in a public place meant you could be observed, but that you would simply be a memory in a human mind somewhere. It wouldn’t be recorded in video format that could immediately be published to the entire world.” Hoppe said.
Where does the law go from here?
Right now, privacy laws in the U.S. are largely reactive and evolve after new technology has reshaped how we live. But what might it look like if we got ahead of the curve (or at least tried harder to catch up?) Like everything, it’s complicated.
Hoppe imagines one extreme: a “privacy maximalist” set of laws, where no one could be recorded without their consent, even in public. “That would make sense, right? But the challenge you then have is things like security cameras and other stationary devices that are simply recording everything. Is that really a privacy threat?” Hoppe says. “And if so, isn’t it outweighed by the beneficial effects to society as as a whole, in terms of protection of crime prevention and protection of property and so forth?”
And there’s that whole “freedom” thing. “The idea that there is a public sphere where we are free to capture and record and share our views about what we see, is an essential part of free speech,” Goldman says. “And if privacy laws were to overly restrict that, it would take our away our ability not only to express ourselves and and react to the world that we see, but it would have significant power implications on the ability of people to control conversations in a way that would ultimately take power away from us as people…We cannot let the concerns about people’s desire to control what people know about them override the ability of people to have organic, healthy, pro-social conversations.”
The social norms of smart glasses recording
If you’re living your life in a halfway ethical manner (and you’re not providing cultural commentary in concert form like Massive Attack) you probably aren’t keen to privately dox everyone on the bus, and social norms are probably more important to you than potential legal penalties. Maybe you won’t be hauled away in cuffs for recording people eating dinner on the outdoor patio of a restaurant, but you will be met with scorn from just about every diner—especially if you’re sticking a phone in their face. Smart glasses, being less obvious than iPhones, change the equation somewhat. The etiquette around their use is evolving, leaving us all in a gray area where what’s legal and what’s socially acceptable don’t always line up.
Even if they’re not encoded in law, we’ve (mostly) collectively agreed upon some norms when it comes to cell phones—don’t film others in the gym, don’t stick your phone in a stranger’s face, etc.—and we’re getting there with smart glasses, but until we arrive, it’s going to be a bit tricky.
Smart glasses make recording less obtrusive and more natural-feeling, but they also make it easier to cross lines without realizing it. So it’s best to err on the side of courtesy: respect people in public, respect private spaces, and be cautious of what you’re recording in private/public spaces—taking pictures of your meal and friends is cool; taking pictures of strangers is not. Getting it wrong probably won’t end up with being thrown into jail, but being known as “that creep with the damn Meta glasses” might ultimately be a worse fate.