United States: Socially Aware: The Social Media Law Update - Volume 4, Issue 2

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we explore legal concerns raised by Google Glass; we provide an overview of the growing body of case law addressing ownership of business-related social media accounts; we take a look at two circuit court decisions addressing the interplay between social media usage and the First Amendment; we examine the trend toward collaborative consumption and associated legal issues; we discuss an important new decision regarding unilateral modifications to online terms of use; and we highlight an industry warning to website operators who collect data for purposes of online behavioral advertising.

PEERING INTO THE FUTURE: GOOGLE GLASS AND THE LAW

By Gabriel Meister and Benjamin Han

What is Google Glass?

As most Socially Aware readers know, Google Glass ("Glass") is a form of wearable technology that gives its users hands-free access to a variety of smartphone features by attaching a highly compact head-mounted display system to a pair of specially designed eyeglass frames. The display system connects to a smartphone via Bluetooth. In its current form, Glass can pull information from the web, take photographs, record videos, send messages via email or SMS, notify its user about messages and upcoming events and provide navigation directions via GPS. An embellished demonstration of Glass's features is available at Google's Glass web page.

Although Glass is in the testing stage as of the time of this writing and boasts only a modest set of features, the device has caused quite a stir in both the mainstream and social media spheres. Wearable technology, however, has been around for quite a while (for an extensive history of wearable computers, pay a visit to Paul Miller's article on The Verge) and, although controversial, many of the concerns raised by Google Glass are not entirely new. This article will explore some of the more common concerns raised about Glass in the context of evolving legal and social norms — all premised on the assumption that Glass eventually will ultimately become a widely used, mainstream product.

Glass and Privacy

When the original Kodak cameras were released in the late 19th century, they caused a huge uproar among both lawmakers and consumers for their ability to do what they are designed to do: that is, take pictures. This led to widespread bans on cameras at beaches, the Washington Monument and other locations. Samuel Warren and Justice Louis Brandeis aptly noted in an 1890 Harvard Law Review article:

Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons[.]

As Kodak cameras became more mainstream, society adapted by creating new laws, one of the most important of which was development of the "reasonable expectation of privacy" doctrine, which purports to protect individuals from being photographed in certain places recognized as "zones of privacy" — a designation that does not typically extend to public places.

Needless to say, Glass is made of more advanced technology than the original Kodak cameras, and this new technology raises a whole new set of potential concerns. In particular, (1) taking a photograph with a traditional camera is typically more noticeable to subjects and onlookers alike than taking a photograph with a "wearable" device like Glass, and (2) the Bluetooth connection between Glass and its user's smartphone allows the possibility of real-time facial recognition.

In part due to these concerns, on May 16, 2013, a bipartisan caucus of congressmen sent Google an inquiry regarding a variety of privacy matters. In response to that inquiry, Google announced on June 3, 2013, that it would not allow applications with facial recognition on Google Glass. (Naturally, hackers have thumbed their noses at Google's announcement, reportedly building their own unauthorized software with facial recognition features.)

Although banning facial recognition apps may address the second concern noted above, the first concern still stands because people being photographed by a Glass wearer, whether in a "zone of privacy" or in a public place in which there is no reasonable expectation of privacy, simply might not even know it. A handful of establishments have responded by preemptively banning the device from their premises. Seattle's 5 Point Café was, perhaps, the first to issue such a ban, announcing via Facebook back in May 2013, "For the record, The 5 Point is the first Seattle business to ban in advance Google Glasses. And a** kickings will be encouraged for violators." Colorado's Press Play Bar followed with its own ban in July 2013. And Guantanamo has banned Google Glass.

Only time will tell whether one-off bans on Glass and similar devices are akin to the overreactions — at least we now perceive them to be overreactions — that inspired bans on Kodak cameras in the late 19th century. And, perhaps preemptively, Glass already limits a user's ability to take photos to cases in which the user either speaks an audible command or makes a visible swipe on the device's tactile sensor, and limits video recordings to 10 seconds in length without a user holding onto the tactile sensor. Of course, developers have already created an app that lets users take pictures by simply winking. Glass's entrance into the mainstream is poised to cause further disruption.

Breaking The Casino

In the 1960s, a group of UCLA and MIT graduate students created a "cigarette pack sized analog device" that increased the expected gain of playing roulette by 44%. The theory behind the device was to feed data concerning the motion of the roulette wheel and ball to a primitive computer that would predict the likely location of the ball's drop. The premise of such a device was featured more recently in an episode of the popular television show CSI, in which (again) a pair of students created a device that would send video data from the casino back to an off-site computer run by one of the students, who would then relay the predictions back to the player on-site.

The possibility of improving gamblers' odds over the house's odds goes further than just roulette. For instance, with the assistance of a computer, even average blackjack players could accomplish feats reserved for the most skilled card counters; this is why Nevada gaming regulators issued an alert to casino operators in February 2009, warning them about the use of a then newly released simple card counter app. Wearable computers at the poker table can even be used to transmit hand information from one play to another, enabling collusion.

Perhaps it's only natural that casino operators are fearful of Google Glass. The Associated Press reported on June 12, 2013, that the Nevada and New Jersey Gaming Commissions have urged casinos to ban gamblers from wearing Google Glass on their premises. Some casino operators, such as Caesar's Palace, have already forbidden their customers from wearing Glass while in their casinos, and Delaware has banned Glass from its own casinos. None of this is surprising, given casinos' long history of taking strong measures to prevent players from gaining an edge over the house. And given the level of deference that state gaming commissions afford casinos in limiting the use of electronics on their premises, Glass is likely to be unwelcome at gambling houses for the foreseeable future.

Safety While Driving

In February 2013, Sergey Brin, Google co-founder and Glass developer, commented during a segment of TED Talks that one of Project Glass's goals was to change how people interact with their smartphones. According to Brin, the goal is to "free your hands" and "free your eyes" by limiting the need to look down at a phone screen. One Glass feature that best embodies this goal is turn-by-turn navigation.

In its current iteration, Glass's turn-by-turn navigation is relatively simple, capable only of providing pop-up notifications of upcoming turns. In the future, Glass may be capable of layering information over a user's peripheral vision, and even augmenting that information with information from the web. Yet, even in light of the device's relatively simple set of current navigational features, the possibility of using Glass while driving has caused plenty of stir.

Daniel Simons and Christopher Chabris, psychology professors at the University of Illinois and Union College, respectively, explored the potential safety concerns arising from using Glass while driving in a May 24, 2013 New York Times op-ed piece. Simons and Chabris argue that people are fundamentally incapable of looking away from where they're headed for more than a couple of seconds without losing their bearings. Drivers "intuitively grasp" this limitation by only glancing at the car radio or speedometer briefly before returning their eyes to the road. (Meanwhile, other distractions have been shown to be far more dangerous; the op-ed cites a study that demonstrated that drivers who texted with their mobile devices looked away from the road for as long as 4.6 seconds during a given six-second period, more than sufficient time to cause a major accident.)

Glass tries to circumvent this limitation by only displaying turn-by-turn information at relevant times, that is, just before turns that are coming up, as demonstrated in this video. Still, Simons and Chabris believe that it will be a challenge to find the right balance of information that can be safely displayed directly in drivers' fields of vision.

Safety concerns like these are the motivation behind West Virginia State Rep. Howell's proposed legislation that would amend driving laws to prohibit "using a wearable computer with head mounted display" while driving.

Delaware's lawmakers have introduced similar legislation. And according to some reports, the UK Department for Transport is considering its own ban on using Google Glass while driving.

It is unclear whether a blanket legal ban on head-mounted displays is the best approach to maximize safety. Arguably, Glass may strike the right balance by providing drivers with the same information they would typically retrieve by glancing down at a GPS system — without making drivers look away from the road. Head-mounted systems like Glass could be also used as a sort of "warning system" that alerts drivers that they are, say, approaching the speed limit, again without having to look down at separate speedometers. On the other hand, any guidelines for when and how head-mounted displays like Glass can be used on the road would probably need to be both granular and flexible to accommodate what will undoubtedly be a rapidly evolving technology.

The Future

Can you envision the first time someone uses Glass to surreptitiously record a feature film at the local multiplex? According to Fast Company, a VP at the National Association of Theatre Owners has imagined just such a situation and says that his group anticipates working with its hundreds of members to develop Glass usage policies for their theaters. Can you picture the first time someone uses Glass to record a concert whose producer or venue enforces a strict "no videotaping" policy, or to secretly photograph sensitive documents containing trade secrets? Or the first time someone is wearing Glass while committing a crime? How will workplaces handle Glass, whether worn by visitors or used by their own employees on or off the job?

Countless situations are going to be influenced by Google Glass and similar wearable technologies. And given the range of issues that have already arisen in beta, these technologies' impact on laws and social norms is bound to be more than just a matter of where you can or can't wear your Glass.

To read this Newsletter in full, please click here.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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Authors
Gabriel E. Meister
Aaron P. Rubin
Alistair Maughan
Susan McLean
D. Reed Freeman, Jr.
Patrick Bernhardt
 
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