Augmented Reality and Privacy
Concerns: What Will the Law Have to Say
Written by Dan Cyr
With
augmented reality becoming ever more “real” as the years pass by, what is the
use of wearable glasses and other devices have on our human rights and laws
that protect us? When it comes to augmented reality, there are “inputs” which
capture and record the environment and “outputs” that overlay information over
the actual environment in focus. In general, augmented reality senses properties
about the real world, processed data in real time, recognizes real world object
and outputs information to the user. How will this technology affect our
privacy and sense of security?
Upon further
review of the legal concerns and our rights here in the states, I came across a
research paper by the UW Tech Policy Lab and Computer Science team at the
University of Washington.
When it came to the collection or “input” of data from an augmented reality
device, the following issues were found:
· Today the courts treat nearly any expectation of privacy in
public as unreasonable. But technologies such as GPS and drones that are
capable of widespread or constant surveillance at low cost are testing the limits
of this doctrine. AR will put additional pressure on this cracking edifice
because it has the potential to record persistently, source and present related
information from various sources to users, and blend seamlessly into the
environment.
· American constitutional law also assumes no reasonable
expectation of privacy in information conveyed to a third party. AR has the
potential to convey one’s entire stream of observation to a company for
analysis and storage, with unclear constitutional import. Design choices about
whether to store data locally or in the cloud (or to provide user with a
choice) directly affect the level of legal privacy protections afforded that
information vis-à-vis the user.
·
Historically, free speech interests have involved the right
to express oneself in various media. AR tests the limits of a burgeoning free
speech right, recognized by a handful of courts, to photograph public officials
or matters of public interest.
· AR complicates intellectual property law by gathering and
potentially transforming copyrighted or trademarked material that appears in
the real world. For example, recording copyrighted material likely constitutes
copying, for purposes of copyright infringement, at the moment of capture—as
well as when copies are saved to external (temporary or permanent) storage. Of
course, the usual defenses to infringement (e.g., fair use) apply in these
scenarios, but the potentially pervasive and persistent sensing of copyrighted
material by AR technologies, combined with manipulation or output issues,
raises difficult new questions about how existing intellectual property law will
apply to new situations made possible my AR.
· The form factor of recording equipment has an effect on
rulings in the legal landscape. In areas where there is a reasonable
expectation of privacy, the presence of obvious recording equipment—like a shouldercam—is
considered to serve as a cue that recording may be taking place. While early AR
rigs— such as those worn by Steve Mann or Thad Starner— were fairly obvious,
modern AR systems are leaning towards more inconspicuous form factors. This, in
turn, can have an effect on legal rulings regarding captured footage.
·
AR systems might
also be designed to allow remote environmental triggers to control when sensing
capabilities should be disallowed (for example, a movie theater may limit the
ability of devices to record while a movie is screening). This possibility
raises novel questions about limits on First Amendment information gathering
rights, device ownership, intellectual property protections, and personal
privacy.
When it comes to the output or display of the data, the following
issues have been raised:
·
Users of AR may
rely upon data that leads to their injury or other harm. Information provided
to AR users may be false, incomplete, or misleading. Scenarios range from
obscuring a road sign or distracting a driver, to misidentifying a plant or
mushroom as safe to eat or failing to inform a user when a potentially dangerous
situation is sensed by the technology. This capacity will test the limits of
product liability law, among other areas, and the specific design of these systems
(e.g., whether they are designed for specific or general purposes) may alter
the legal outcomes.
· AR can furnish
users with truthful information they should not have, or at least that they
cannot legally use to make decisions. Thus, for instance, a system could use
facial recognition to pull up a job candidate’s mug shot, social media profile,
or relationship status in a jurisdiction that does not permit employers to discriminate
based on arrest history, marital status, or other information that may be
available through technological intervention. Thus, the use of AR could contribute
to forms of illegal discrimination, raising possible legal liability for users
and developers.
· AR could even
prove the source of a new category of “digital assault,” i.e., intentional
interference with an AR user to cause fear or other harm. Tort law purports to
cover such transgressions, but there are next to no test cases to date. There
are, however, preliminary examples—for instance, hacking a website for epileptics
to attempt to induce seizures, or advertising for exterminator services by
creating the illusion that a spider has run across the user’s screen. These factors
suggest that the use of AR to surprise, scare, or harm an AR user (particularly
when the technology can sense the user is in a vulnerable situation; for
example, while driving a car or when the person is depressed or unhappy) may
lead to potential liability for something akin to digital assault.
So what does this all mean? This means that there are plenty of hours
and negotiations left in the works for augmented reality companies and lawyers.
Privacy is a basic necessity that most of us crave as human beings. Companies
need to respect that in order to make their sales.
