Google Glass has been a mere gleam in the eye of tech savants for the past several months, but the company began distributing the wearable internet device to a hand-picked group of “Explorers” in June. A fascinating pair of articles from the New York Times Bits columnist, Nick Bilton, recently highlighted the tensions between speech and privacy that are likely to play out as the device is integrated into everyday use. The articles compared Glass to Kodak cameras, which were controversial when introduced in the late 1800s but ultimately accepted after Americans figured out how and when the cameras should be used. It’s not clear, however, that the Glass experience will duplicate the Kodak pattern. Kodaks came on the market when tort law could respond nimbly to camera invasions of privacy, while Glass is debuting in a world where tort law is increasingly subject to constitutional constraints.
Bilton teed up the Glass privacy issue nicely in May, when he described his visit to the Google I/O developers’ conference. There, hundreds of attendees were sporting the eyeglass-mounted computers, which can take a snapshot or video with a wink of the wearer’s eye. Bilton — a self-professed tech nerd — reported being rattled by the swarms of Glass wearers; after trying to “duck [his] head and move out of the way” of the wearable cameras, he retreated to the men’s room, only to find the urinals on either side of him occupied by Glass wearers. “My world,” he wrote, “came screeching to a halt.” In an article appearing a week later, however, Bilton appeared to have calmed down. He had interviewed CUNY journalism professor Jeff Jarvis, who predicted that unwilling stars in Glass pictures and videos would eventually realize that being recorded is simply a hazard of appearing in public. Jarvis likened the anti-Glass complaints to the furor that erupted when Kodak cameras were introduced in the 1890s. So-called Kodak fiends, who trained their lenses primarily on uncooperative females, initially encountered threats and violence. Ultimately, Jarvis said, amateur photographers began to behave better and society accepted cameras as a new feature of daily life.
But Bilton and Jarvis may have overlooked a crucial difference between the legal environment when pocket cameras were introduced and the legal environment today. Tort law was instrumental in developing norms about acceptable camera use in the early Twentieth Century. The Kodak fiends did not become more respectful overnight, and Americans did not become easily inured to having their pictures taken by strangers. Instead, Samuel Warren and Louis Brandeis protested the abuse of cameras in what has been called the most famous law review article ever published, The Right to Privacy. That piece advocated the creation of a new tort that would give victims of stealth photography (and other dubious news practices) a legal remedy against their aggressors. State courts began recognizing privacy torts in 1905 and by 1960 they were a standard part of the tort toolbox. In short, tort law established a background scheme of legal liability for the abuse of camera technology, and social norms about acceptable camera use followed.