United States: Driving Under The Influence (Of Google Glass)

Last Updated: February 24 2014
Article by Cindy P. Abramson and Gabriel E. Meister

In September 2013, Socially Aware took a close look at the potential legal issues confronting users of Google Glass, the now instantly recognizable, compact head-mounted display mounted on a pair of specially designed eyeglass frames, which lets wearers access a variety of customized smartphone features.

In the meantime, Google's Glass Explorer Program has expanded steadily.  In October 2013, the company announced the ability for each Explorer to invite three friends to join and purchase a Glass, and officially rolled out its "Glassware" app review program.  With the expansion of the Glass Explorer Program, several of the issues we identified last fall have come into sharper focus, including one that could have a real impact on wearers' daily lives.

California Vehicle Code Section 27602

On October 30, 2013, Cecilia Abadie was ticketed by a California police officer—not just for speeding, but for wearing her Google Glass while driving.  The officer who ticketed Abadie cited a provision of California's Vehicle Code, VC Section 27602, for the Glass-related violation.  The relevant portion of the law states:

(a) A person shall not drive a motor vehicle if a television receiver, a video monitor, or a television or video screen, or any other similar means of visually displaying a television broadcast or video signal that produces entertainment or business applications, is operating and is located in the motor vehicle at a point forward of the back of the driver's seat, or is operating and the monitor, screen, or display is visible to the driver while driving the motor vehicle.

Naturally, VC Section 27602 was written before the advent of Google Glass (and it hasn't been amended since 2011).  The law carves out several exceptions for equipment "when installed in a vehicle," including global positioning and mapping displays, rear-view cameras ("[a] visual display used to enhance or supplement the driver's view forward, behind, or to the sides of a motor vehicle for the purpose of maneuvering the vehicle"), and even television receivers that are disabled or unviewable while the vehicle is driven.

Abadie decided to fight the ticket, and on January 16, 2014, she was found not guilty by the San Diego Traffic Court Commissioner.  You can read a copy of the ruling on Abadie's Google+ profile.  The Commissioner's decision relied on the fact that there was no proof that Abadie's Glass was in operation while she was driving.  This highlights an interesting difference between, on the one hand, dashboard-mounted screens, and on the other hand, compact head-mounted displays that may or may not have a visible "on" indicator: it's much easier to tell whether a dash-mounted screen is "operating" at any given time.

In November 2013—notably, after Abadie was issued her ticket—Google reportedly updated its Glass FAQ to answer the question, "Can I use Glass while driving or bicycling?":

It depends on where you are and how you use it.

As you probably know, most states have passed laws limiting the use of mobile devices while driving any motor vehicle, and most states post those rules on their department of motor vehicle websites.  Read up and follow the law!  Above all, even when you're following the law, don't hurt yourself or others by failing to pay attention to the road.  The same goes for bicycling:  whether or not any laws limit your use of Glass, always be careful.

Safe Driving Apps on Glass

The question of whether driving while wearing Glass is legal is different from the question of whether it's safe.  Many contend that Glass and similar devices simply add to an already long list of driver distractions.  But others argue that some Glass apps—particularly apps that are specifically designed to be used while driving—are not only safe, but actually a positive alternative to using dashboard navigation systems that force drivers to take their eyes off the road repeatedly (and certainly a better alternative to the somehow irresistible urge to take out one's smartphone to check messages or hunt for traffic alerts).  To put it another way, there's a difference between merely using Glass while driving, and using Glass for driving.

For example, one sideloadable Glass app, DriveSafe, is designed specifically to make driving safer by using Glass's built-in sensors to alert the driver when he or she appears to be nodding off.  The app, which is activated with the phrase, "OK Glass, keep me awake," can even provide its wearer with directions to the nearest rest stop.  Another developer, INRIX, is exploring the possibility of porting its traffic app to Glass in order to enable drivers to receive real-time traffic alerts in their head-mounted displays and help them reroute their trips, all in a reportedly unobtrusive manner.  Query whether the prevalence of safety-specific Glass apps will see the advent of a "driving mode" for wearable head-mounted displays.

There is at least one Glass app whose safety implications are tough to refute: developed by a firefighter in North Carolina, the app feeds critical emergency information, such as a fire's location and type, directly to a firefighter's line of vision while driving, potentially eliminating the need to reach for a radio, mobile phone, or other device to retrieve the same information.  And firefighters may not be the only civil servants seeking to take advantage of Glass; in early February 2014, the NYPD announced that it is testing Glass for potential use by its officers.  Although the specific uses being tested haven't been announced, it is easy to see how police officers could benefit from wearable head-mounted displays while driving, for example, by viewing details about crimes in progress, getting help with identifying vehicles, or recording offenders on the road.

The Future of Driving with Glass

Although it may be too early to accurately gauge the dangers of driving while wearing head-mounted displays, lawmakers are trying to regulate their use, and are likely to continue to do so—particularly where existing statutes might not do the trick.  At least five states are already considering bills that would ban driving with Google Glass: Delaware, New Jersey, West Virginia, Illinois, and most recently, Wyoming, whose proposed bill lumps Glass together with "texting while driving":

No person shall operate a motor vehicle on a public street or highway while using a wearable computer with head mounted display, or while using a handheld electronic wireless communication device to write, send, or read a text-based communication.

And even though Glass is currently available only to U.S. residents (the Device Specific Addendum of Google's Glass Terms of Sale states, "You must be 18 years or older, a resident of the United States, and authorized by Google as part of the Glass Explorer program in order to purchase or use Glass Explorer Edition"), the UK government is already contemplating a ban on Glass for drivers.

It will be particularly interesting to see how these new pieces of legislation address drivers who wear corrective lenses.  Originally, prescription lenses simply weren't compatible with Glass (although that didn't stop people from retrofitting earlier versions of the device with prescription lenses, including one man who was detained in January 2014 by federal agents after he wore his Glass to a movie theater and was suspected of trying to record the film using the device's camera).  But in late January 2014, Google announced that it will be selling Glass frames that are designed to accommodate prescription lenses; and Vision Service Plan, the largest vision insurance provider in the United States, has announced that it will be offering subsidized frames and prescription lenses for Glass.  As head-mounted devices with prescription lenses become more prevalent, we are likely to see a larger population of users who simply can't remove their head-mounted displays, particularly during vision-critical activities such as driving.

The story here is not an uncommon one.  The law struggles to catch up with advanced technologies like Glass and their new perceived risks; meanwhile, governments continue to use old laws to address those new risks, even though the fit isn't always perfect.  Keep your eyes on the road, and we'll keep our eyes on further Google Glass legal developments.

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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Cindy P. Abramson
Gabriel E. Meister
 
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