Smart Glasses, Dumb Laws

Smart glasses are here. What was once a cool sci-fi idea in Minority Report is now something we all have to grapple with – something that is basically undetectable recording of any of us, at any time. The only barrier is the self-control and ethical standards of whoever happens to be wearing the tech.

Smart glasses sit on someone’s face, indistinguishable from ordinary eyewear, and capture video and audio of the people around the weaer without any visible act of recording. The person being filmed has no cue, no chance to object, and often no idea it happened at all. Multiply that across cafes, trains, gyms, waiting rooms and school pickups.

For a while now we’ve known a fear of a compromising video clip going viral online. But now it’s the loss of something more basic, the ability to move through public and semi-public life unrecorded.

Smart Glasses and Privacy Laws

It is startling how comprehensively this technology skirts the laws we call privacy laws.

First, the Privacy Act regulates organisations not individuals. Attorney-General Michelle Rowland in her recent media conference announcing the next wave of privacy reforms pointed to the newly proposed fair and reasonable collection requirement in the package of proposals. All well and good, but only if the filming is being done by an organisation covered by the Privacy Act.

Another avenue is Australia’s recently introduced statutory tort for serious invasions of privacy. Apart from relying on people having the resources to take legal action, in terms of applicability, it requires that the complainant must have a reasonable expectation of privacy.

How long is that reasonable expectation going to exist if everyone can record at any time in public? Will we maintain the everyday condition of simply not being recorded?

The more natural fit for smart glasses regulation is surveillance devices legislation, but here it’s a state-by-state patchwork. For all of the state laws, they usually apply to private conversations, where you need the consent of one or both parties to record. Recording people going about their day in a public place usually falls outside these prohibitions.

Nor does the Commonwealth fill the gap. The federal Surveillance Devices Act 2004 governs the use of surveillance devices by law enforcement agencies, not citizen-on-citizen recording.

It is interesting how smart glasses makes European countries’ rights to privacy suddenly incredibly practical and useful and demonstrates how unprotected we are in Australia.

The French national data protection authority CNIL has pointed out the possible use of these devices in places where a high degree of privacy is expected (medical offices, changing rooms, toilets) could have significant consequences for the social interactions between citizens. It then calls for collective vigilance and reminds everyone that Article 9 of the Civil Code guarantees a right to privacy in all places, private and public, and any violation of this right may be punished. The Penal Code punishes by one year’s imprisonment and a fine of €45,000 the violation of someone’s privacy by fixing, recording or transmitting the image of a person in a private place without their consent.

How Should Smart Glasses be Regulated?

In the absence of an overarching right to privacy in Australia, maybe we need a positive right not to be recorded. This is something that has emerged in the public conversation in the past few weeks. It could be a default rule that capturing another identifiable person’s image or voice requires a lawful basis, most often their awareness and consent, unless a defined exception applies.

This could work together with product regulations requiring the record function on smart glasses to switch on a noticeable, prominent indicator light that can’t be disabled and to automatically blur faces.

Such a right could be proportionate and workable. It would carry sensible carve-outs for journalism, safety, accessibility and incidental background capture. The question of who will handle the complaints and enforcement under this right is a tricky one given the OAIC’s lack of resources to handle even its current complaints load.

None of this is simple, and it will draw objections about practicality and free expression. Short of banning the tech, or creating a society we don’t want to live in, this might be the best option. It is hoped that the Privacy Commissioner drives the discussion in the right direction. We need new ideas to tackle the societal upheavals of new technology.  And we need them fast!