Augmented Reality Law, Privacy, and Ethics

Law, Society, and Emerging AR Technologies

Brian Wassom

• Publisher: Syngress
• Year: 2014
• ISBN:
  9780128005248
• Topic: Informatica
• Subtopic: Sicurezza informatica

Augmented Reality (AR) is the blending of digital information in a real-world environment. A common example can be seen during any televised football game, in which information about the game is digitally overlaid on the field as the players move and position themselves. Another application is Google Glass, which enables users to see AR graphics and information about their location and surroundings on the lenses of their "digital eyewear", changing in real-time as they move about.

Augmented Reality Law, Privacy, and Ethics is the first book to examine the social, legal, and ethical issues surrounding AR technology. Digital eyewear products have very recently thrust this rapidly-expanding field into the mainstream, but the technology is so much more than those devices. Industry analysts have dubbed AR the "eighth mass medium" of communications. Science fiction movies have shown us the promise of this technology for decades, and now our capabilities are finally catching up to that vision.

Augmented Reality will influence society as fundamentally as the Internet itself has done, and such a powerful medium cannot help but radically affect the laws and norms that govern society. No author is as uniquely qualified to provide a big-picture forecast and guidebook for these developments as Brian Wassom. A practicing attorney, he has been writing on AR law since 2007 and has established himself as the world's foremost thought leader on the intersection of law, ethics, privacy, and AR. Augmented Reality professionals around the world follow his Augmented Legality® blog. This book collects and expands upon the best ideas expressed in that blog, and sets them in the context of a big-picture forecast of how AR is shaping all aspects of society.

• Augmented reality thought-leader Brian Wassom provides you with insight into how AR is changing our world socially, ethically, and legally.
• Includes current examples, case studies, and legal cases from the frontiers of AR technology.
• Learn how AR is changing our world in the areas of civil rights, privacy, litigation, courtroom procedure, addition, pornography, criminal activity, patent, copyright, and free speech.
• An invaluable reference guide to the impacts of this cutting-edge technology for anyone who is developing apps for it, using it, or affected by it in daily life.

Part B

AR & the Law

Privacy

Advertising, Marketing, and eCommerce

Intellectual Property

Real Property Rights

Torts and Personal Injury

Criminal Law

Civil Rights

Litigation Procedure

Chapter 3

Privacy

Abstract

This chapter discusses the concept of personal privacy and how augmented reality and related technologies will challenge our notions of what is and is not private. It begins with an in-depth overview of how the law defines privacy, and where pertinent legal protections come from. Because of the First Amendment and our nation’s profound commitment to the free and open exchange of ideas, protecting privacy is typically an exception rather than a rule in our legal system. Various privacy rights are found in a patchwork quilt of laws and regulations rather than in one central definition of the term.

The most obvious way that wearable technologies implicate privacy is by enabling surveillance and sousveillance, so this Chapter explores the degree of that concern and what can be done about it. An integral component of that discussion is facial recognition technology, and efforts to regulate that capability are covered. Geolocation information and digital enhancement of data are also discussed.

Keywords

privacy

First Amendment

intrusion into seclusion

publication of private facts

false light

HIPAA

COPPA

Stored Communications Act

Fourth Amendment

eavesdropping

facial recognition

data enhancement

internet of things

surveillance

sousveillance

taggants

Federal Trade Commission

Information in this chapter

• Sources of privacy law

• Privacy concerns raised by AR

• How AR can enhance privacy

Introduction

Privacy is a hot topic these days, especially in connection with any sort of communications technology. In part, this is due to the lightning-fast pace at which information technology is developing. The less people understand how the technology works and how it can be used to gather information about them, the more apprehensive they are likely to feel about it. Privacy is as much about emotional reactions as it is about legal doctrine, and it is still a very amorphous concept from either perspective. There is much disagreement about just what the word means, what sort of rights it should include, and where those rights come from.

That said, however, there are various laws and court decisions that define and protect different types of privacy rights. Many of these are likely to be implicated by the development and implementation of augmented world technologies.

Sources of privacy law

Backdrop: The First Amendment

One basic reason that privacy is such a difficult concept to define and protect in the United States is that it runs counter to our fundamental commitment to free and open speech. Our country was founded on the expression of dissent, personal liberty, and the ability of each individual to participate in the political system. The American legal system still reflects those values in its hesitance to give government the power to prevent a citizen from saying whatever he or she chooses to say – or, putting it more precisely in light of modern communications technology, conveying whatever information he or she may choose to convey.

In the American legal system, virtually all laws concerning the conveyance of information are limited in their application, to some degree, by the First Amendment to the United States Constitution. This bedrock provision prohibits governments from “abridging the freedom of speech … or of the press.”¹ After more than two centuries of interpretation by the courts, this simple statement has been fleshed out into a fundamental principle of free expression that undergirds our entire framework of participatory democracy. As long as the subject of one’s speech has any arguable connection to issues that affect the well-being or interests of more than just those involved in the conversation – what the law calls “matters of public concern” – then the right to express that view will almost always be protected by the First Amendment. By contrast, “matters of private concern” are those that the law recognizes as not being the legitimate business of anyone other than those directly affected by them. These – and, for the most part, only these – issues the law will protect as “private.”

The following excerpt from a 2011 Supreme Court opinion gives a concise summary this bedrock legal doctrine:

Speech on matters of public concern is at the heart of the First Amendment’s protection. The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. That is because speech concerning public affairs is more than self-expression; it is the essence of self-government. Accordingly, speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.

Not all speech is of equal First Amendment importance, however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest. There is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas; and the threat of liability does not pose the risk of a reaction of self-censorship on matters of public import.²

The fact that this summary of the law preceded an opinion in which the Court ultimately upheld the right of radical protesters to display hateful messages at funerals illustrates the breadth of the phrase “matters of public concern.” Any arguable connection to public affairs imbues speech with a nearly inviolable legal protection, no matter how controversial a particular speaker’s point of view may be.

One corollary of this principle is that information in the public domain is free for all to use. In this context, data is more or less presumed to be public; it is a significant burden to prove that something should be free from public scrutiny. Even if information was once legally private, that privacy is gone for good after it is lost. For example, in the 2001 decision Bartnicki v. Vopper,³ the United States Supreme Court refused to punish a newspaper for publishing video footage, even though a third party had obtained it in the first instance by illegal eavesdropping.⁴ And in the famous Pentagon Papers cases of 1971,⁵ the Supreme Court refused to prevent newspapers from publishing leaked classified military documents about the Vietnam War, even though the government warned that disclosure would lead to the death of Americans abroad. That is how sacrosanct the First Amendment principle against what the courts call “prior restraint” on publication has become.

This also explains why what some call the “right to be forgotten” is unlikely to ever take root in the United States as it is beginning to do in Europe. Various groups have advocated different types of legal proposals to give people a legal mechanism to have embarrassing information about them removed from the public record – particularly internet search engines – and to get others to stop repeating it, even if it was once newsworthy. Some American legal commentators have said that this “sweeping new privacy right … represents the biggest threat to free speech on the Internet in the coming decade.”⁶ In 2013, California became the first American jurisdiction to grant a legal right to have personal information deleted from the internet, although the statute applies only to minors and is riddled with uncertainty as to how it will work.⁷ But even if the statute survives legal challenge, First Amendment jurisprudence will not permit American regulators to run very far with this idea. The Supreme Court has struck down on free speech grounds more than one law intended to prevent child pornography, for example, and even refused to restrain newspapers from publishing the names of rape victims, so long as the information was legally acquired.⁸

That is why the First Amendment remains the elephant in the room during any discussion of American privacy law, even though the provision itself restricts only the government and not private citizens. It explains, for example, why privacy laws cannot prevent individuals from collecting and repeating information that is freely available in public places – such as overheard sights and sounds – including by recording them. The freedom of speech also explains why the penalties for even a bona fide invasion of privacy sometimes seem so anemic; the offender may be punished, but the ill-gotten information typically remains in the public sphere.

This is also why it has been so difficult to find a legal path toward a third category of information between “public” and “private.” For example, philosophy professor Evan Selinger of the Rochester Institute of Technology in New York has proposed formalizing the idea of “obscurity” as a legal category for information that, while not entirely private, must still remain difficult to access.⁹ Despite the attractiveness of this proposal, it is difficult to envision how obscurity could be lawfully enforced in a legal framework that forbids government restrictions on speech.

All of this said, however, the law will restrict some speech on some subjects under some circumstances. Exceptions to the freedom of speech are just...