Civil Liberties

Turning Yourself Into a Surveillance Camera May be Perfectly Legal

Sousveillance as a constitutional right.


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.