Surveillance

Turning Yourself Into a Surveillance Camera May be Perfectly Legal

Sousveillance as a constitutional right.

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Narrative Clip
Narrative Clip

Late last year I wrote about the Narrative Clip, a digital camera about the size of a postage stamp that clips to one's breast pocket or shirt collar and takes a photo every thirty seconds of whatever one is seeing. Since then I have received my Clip and I wear it on occasion to catalog my day. People's reaction to the fact I'm capturing every moment has been a mixed bag. Yet despite how people feel about it, my sousveillance is likely protected by the First Amendment.

Most people don't notice that you're wearing it. But when they do, their reaction is often negative. I found this out the same day I got my Clip in the mail.

A few hours after I first put it on, I went to a meeting with about six other coworkers. Someone noticed it right away and asked me what it was. I explained, and everyone laughed nervously. They joked a bit and let it go, chalking it up to the fact that I'm the tech policy guy, always trying new gizmos and poking the edges of convention.

A few minutes later, after the meeting had begun, another co-worker came in late and sat across from me. After a while she said, "What is that?" Everyone laughed nervously again and I explained. She wasn't having it and said, "OK, you have to turn that off."

Not the time or place to engage in a sociological investigation, I happily complied and took off the Clip. Later I asked her why she minded the device even though it recorded no sound or video and I wasn't going to share the photos with anyone. She said that quite plainly she didn't like her photo taken unless she was expecting it.

I've gotten this reaction many times over. Usually I'll be engaged in lively conversation with someone, perhaps in a group, and then all of a sudden comes the question: "What is that?" It's often disconcerting because it's easy to forget you're wearing anything.

Some people think it's cool once you explain. (After my colleague Veronique de Rugy asked me about mine she immediately went and got one herself!) Most, however, seem to think you shouldn't have a right to surreptitiously photograph them. Yet whether you like it or not, that view is increasingly looking like a losing proposition.

First is the inescapable reality that technology is making ubiquitous capture of almost every moment practically inevitable. Cameras that used to cost thousands of dollars, and required further expense in tape or film, are now essentially costless as they are built into everyone's phones. Storage costs continue to be driven down to near zero, and Internet connectivity is becoming faster and more prevalent.

Miniaturization continues apace, and it won't be long before the Narrative Clip can be the size of a button. Indeed, it will soon be difficult to find a wearable device that doesn't have a connected camera. This all means that the question "what is that" may not even get asked.

Second is the legal question. If these darned things are poised to be so pervasive, some will reason, we should ban them, or at least their offensive use. But even though such prohibitions would be increasingly unenforceable given the pace of technological progress, perhaps the more interesting challenge they will face will be constitutional.

In an insightful article for the Pennsylvania Law Review, Prof. Seth F. Kreimer convincingly shows that pervasive image capture in public is largely protected by the First Amendment. For example, some may argue that the Constitution technically only proscribes laws "abridging the freedom of speech, or of the press," and that capturing images is neither, Kreimer points out that handwriting letters are also neither speech nor reporting, yet doing so is certainly protected under the First Amendment. "In First Amendment doctrine, narrow parsing of the words of the Amendment has not determined its reach," Kreimer notes.

A more plausible argument is that while displaying a photo may be protected, a prohibition on taking photos would not be a prohibition on "speech." This is because unlike displaying photos, when taking a picture one is not speaking to an audience—there is no message being conveyed. So does that mean we can prohibit the capture of images without the subject's consent?

No, says Kreimer, pointing out that keeping a diary is absolutely protected speech, yet these have no audience but one's future self. Even if you're hung up on the idea of an audience apart from one's self, today the time between capturing and image and broadcasting it on the Internet can be infinitesimal, meaning there is increasingly little distinction between capture and publication. And to the extent you take time between capture and publication to edit a photo, then it doubly underscores the expressive nature of the activity.

If law can't contain the increasingly ubiquitous photography that will surround us, what can?

As my colleague Adam Thierer has pointed out, we've been here before. When cameras and public photography were first becoming popular, there was a backlash against the new technology by those who feared for their privacy. Yet as Adam notes:

public attitudes toward cameras and public photography evolved quite rapidly, and they became an ingrained part of the human experience. At the same time, social norms and etiquette evolved to address those who would use cameras in inappropriate or intrusive ways. This holds true for modern technology. Using smartphone cameras in gym locker rooms, for example, is frowned upon not just by gym management (which often posts notices restricting use) but also by patrons. Social constraints on mobile phones also constrain their uses in other public establishments and settings, such as in movie theaters, fancy restaurants, and "quiet cars" on trains. These norms or social constraints are purely bottom-up and group-driven.

We will no doubt develop similar norms for the coming wave of pervasive wearables. I should know, I've already been on the front lines.

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  1. It’s not immoral when I do it.

  2. I would imagine turning yourself into a surveillance camera will ultimately result in someone else turning you into a bloody lump.

    Legality aside, it’s cruising for a bruising.

  3. And still there will be no pictures of bigfoot or a UFO.

    1. STEVE SMITH NO LIKE CAMERA!!!! GRAAAHH!!!!!

  4. She said that quite plainly she didn’t like her photo taken unless she was expecting it.

    Look, if you could just keep your photons to yourself, I wouldn’t have to find something to do with all of them.

    1. She was asking for it wearing those clothes that reflect light waves in the visible spectrum.

  5. Is there an impact sensor in it? Or some voice recognition software that will switch it from every 30 seconds to continuous video if it detects the phrase “Stop Resisting!”?

    If it is only every 30 seconds the beatdown from the police will look real choppy

  6. I think a policy of repeated written affirmation needs to be instituted so that women never have to feel the slightest bit of regret from having people look at them and taking pictures of them.

    It’s the only way to know that everyone who has ever taken a photo of a woman or with a woman isn’t a rapist.

  7. Somebody help me out here:

    The 1A isn’t a blanket protection for anything you like to do. It protects free speech and free press (often updated to free expression). It protects your right to disseminate information.

    I don’t see how it protects your right to collect information, unless (by implication) you are doing so in order to disseminate information.

    I would be happy to shed some of these penumbras if it would mean that the actual rights were protected as written. Instead, we seem to be neglecting the core rights in order to chase penumbras. Not smart. IMO.

    1. Do you have the freedom to look at stuff?

      Those images are recorded in your memory. What’s the diff between your memory and digital memory?

      9A?

    2. What right is being violated by photographing someone? The 1st Am. protects your right to swing your fists freely.

      I wholly concede that photographing someone against their will is my fist grazing their nose (or landing squarely depending on the photo), but I was only half joking above; if you’re serious about owning your photons, you need to do a better job of keeping them out of my CCD.

      1. There’s an old saying to the effect that “the eyes cannot sin”: if you are somewhere you’re allowed to be (in public, or a private space you’ve been admitted to), and you’re doing something you’re allowed to do (sitting there quietly, looking around), then there can’t be any crime in it. And yet people get all bent out of shape about public photography, without really being able to explain why. This is not to say that they’re necessarily wrong, but it seems like something we as a people haven’t though through very well.

        (Also, people tend to hold bizarre and usually wrong beliefs about the legality of photographing people in public, but then most people don’t know the law from a hole in the ground, period.)

        1. Leaving out Constitutional issues at the moment, the difference is that I may choose to share my presence or thoughts with you, but that does not mean that I agree to share my presence and thoughts with anyone who may be watching your feed. I know who is in the room, or generally around me on the street (or at least about how many are around me on the street), but I have no control over what you are sending out. It’s generally considered impolite to listen in a conversation that is not meant for you, and in any voice-only telemeetings I’ve attended, all of the parties in each room generally announce themselves, even if they make no other statement or ask any questions. This one is going to to take some thinking to codify, and the current laws and even our Constitution may not cover it, but that is indeed why we have an amending process.

          I’m gonna need to think about this one.

    3. I am planning on posting every picture I take that looks good on facebook. Am I collecting the information in order to disseminate it now?

  8. Protected under 1A…

    …AND creepy.

    I’ll place this in the flag burning pile. I don’t approve, but I’ll defend your right to do it.

  9. We are getting photographed/video’d a hundred times a day – gassing up, buying cough medicine, ordering pizza by the slice. I don’t like it, but I live by the rules of the establishment I’m at. Individuals now have the technology to commit to hard drives all sorts of data as well. But all of this does not give the entity called government to suck up all this type of data en masse. My only worry by not at least questioning the propriety of individual information collection is that it will the State of the opinion it has the same rights as individuals, which it does not. They should have a specific reason, and warrant level approval to collect broadcast data. If individuals have obtained data, it should be subpoena-able at that point.

    I don’t have to like people randomly recording either, but I won’t use Force for them to stop. If I feel my privacy is being purposefully impinged upon, I may use Force as a type of defensive Force (e.g. being followed around to collect data to use against me or my property in a conspiratorial way).

  10. If you wear one of those things you’re perfectly within your legal rights to do so. You’re also a twat.

  11. Why this is not ok has something in common with why I object to being required to present an ID, it is about personal integrity, and part of that is not being questioned or recorded at any or every moment.

    Maybe it’s no more than that *I* choose what I share of me and how far it goes. Pretty libertarian attitude, I guess.

  12. More thoughts about what I do not like about this:

    In the absence of any intentional interaction, I expect to be left alone, and I expect to mind my own business and give others their privacy too. In the example of walking down a street, I expect my interactions with other to be transitory, ephemeral. This device robs me of that expectation. Anonymity and privacy are often confused, but they simply refer to the same thing in the public space and in the intimately shared space. No one (or no entity) has any business keeping a log of my comings and goings, or my comments and questions, unless I give grant permission. That permission might be implicit, by acknowledging their presence or posting a comment on Reason, but even then, there is a scale to the relationship. I would not just kiss someone without knowing them, and I would not engage them in a politcal debate without being prompted. I would not take their picture without consent or at least knowledge. Why is this any different?

    Regarding the technological fascination of this, the need to use every toy that comes along is what leads events like the bombing of Hiroshima and Nagasaki. This looks like all downside, and not much upside, IMHO.

  13. Read “Earth” by David Brin…he predicted this behavior in 1990. A really good near future novel.

  14. Pros and cons. Some of us let our lips flap rather loosely in jest when we assume nobody is listening or recording. After a few reputation ruinations, that might change.

    But if that’s the price we have to pay in order to hold the authorities accountable, I can live with it and then some.

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