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.
But tort law may not be able to reprise that feat in the early Twenty-First Century. Starting in 1964, the Supreme Court increasingly subjected to First Amendment scrutiny tort actions designed to protect dignitary interests such as reputation, privacy and emotional well-being. In New York Times v. Sullivan it established constitutional rules limiting recovery by public officials suing for defamation. A few years later, it imposed constitutional limits on privacy causes of action in Time, Inc. v. Hill and later still, it applied similar principles to intentional infliction of emotional distress in Falwell v. Hustler. Of course, these cases and the dozens like them did not completely wipe out the defamation, privacy or intentional infliction torts. But they did send a broad signal that whereas public law speech protections and private law dignity protections had peacefully coexisted in the past, speech was now the paramount interest and dignity the secondary concern.
Digital natives, especially, have absorbed this message and may be far less likely to bother protesting invasions of privacy by suing Glass users for taking and posting invasive images. For example, one student responding to the Times‘s invitation to comment on the privacy implications of Glass remarked that “the only privacy we own is in our own heads.” Justice White — paparazzi bait in his day — remarked in 1974 that if the tort system offered little recourse for injuries inflicted via speech, private citizens would be “discourag[ed] from speaking out and concerning themselves with social problems. This would turn the First Amendment on its head.” How Americans respond to Glass in the next several years may tell us a great deal about the current state of tort law, speech law and the relationship between the two.