California Supreme Court May Allow The Censoring Of Consumers’ Online Reviews

Forums such as Yelp, TripAdvisor, Amazon, Facebook, and Twitter, provide consumers with the opportunity to voice their opinions by detailing their experiences as patrons of various restaurants and other local businesses.  The reviews of prior consumers can weigh heavily when potential consumers decide whether they want to support a particular business or not.

The use of social media to leave reviews creates a medium in which “word of mouth” can reach many more individuals who are in search of a specific product or service that can meet their needs.  The accessibility of these forums reaching vast numbers of consumers lead to both positive and negative effects.  For consumers, the ability to read about others’ good, bad, and neutral experiences can help them determine if the particular business is a right fit for them.  For business owners, both positive and negative reviews can indicate to a business what consumers appreciate and also what the business should be doing in order to improve its interactions with consumers.

However, one of the main problems with online reviews occurs when consumers share false negative reviews of a business.  Recently, California Courts have been presented with legal issues arising from the use of online forums, specifically, whether courts have the power to force any specific forum to take down a defamatory review.  Furthermore, courts must address whether any infringement on a consumer’s First Amendment right to free speech arises if a negative review is declared defamatory.

For instance, recently, a California law firm alleged that a past client fraudulently posted false negative Yelp reviews about her experience with their law firm.  Due to the influence of Yelp reviews on a businesses’ reputation, the law firm requested that the former client take down her negative reviews.  The former client refused and the law firm sued the former client for defamation in state court, seeking help from the courts in ensuring its name would not be tarnished.  This case between the law firm and its former client is Hassell v. Bird, and it has made its way all the way up to the California Supreme Court.

Currently, the California Supreme Court is deciding whether to let the Court of Appeals decision stand or whether the Court will issue its own decision.  On September 29, 2014, the Superior Court declared, which then on June 7, 2016 the Court of Appeals affirmed with an opinion written by Justice Ruvolo, that the reviews of the former client were indeed defamatory.  Although Yelp was not a party to the suit, the opinion ordered Yelp to step in to remove these negative false reviews.  The Court explained that since Yelp is an “administrator of the forum” where the negative reviews are found, Yelp is responsible for removing the defamatory speech.

The counsel for Yelp is optimistic that the California Supreme Court has decided to hear its case because it has given Yelp an opportunity to demonstrate how this decision will have an detrimental effect by “restrict[ing] the ability of websites to provide a balanced spectrum of views online.”  Yelp’s counsel and other community members argue that this judicial decision will restrict a consumers’ First Amendment right to free speech.  On the other hand, the law firm’s counsel, San Francisco lawyer Monique Olivier, strongly asserts that these false negative reviews, if considered defamatory, are not protected by the First Amendment, and therefore there is no infringement on a consumers’ right to free speech.  Presently, the California Supreme Court has not decided the matter and the parties in Hassell are awaiting a decision as to whether the higher court will hear their case.


Main Issue Addressed by the Courts

The main issue presented before the California Supreme Court is whether an online publisher has a right to notice and the opportunity to be heard before a trial court orders removal of online content.

In Yelp’s Opening Brief on the Merits, Yelp argues that the Court of Appeals decision should be overturned mainly because the court did not provide Yelp with proper due process protections by not taking into account Supreme Court authority that requires notice and the opportunity to be heard when it relates to orders restraining the distribution of speech.  Yelp argues that the Court of Appeals decision was extremely flawed because they created an avenue for courts to easily apply injunctions to non-parties, even without any inquiry into factual accounts of misconduct.  Specifically, Yelp asserts that now anyone who seeks the judicial system to help provide relief to a case regarding defamation, can forum shop in California and “circumvent due process rights” in this state.

Yelp provides that as a publisher of third-party authorized speech, its First Amendment right to control its own website was violated by this decision.  Furthermore, due to this decision, businesses now have an effective tool in removing unflattering commentary whereas online entities like Yelp are denied their right to exercise editorial control in publishing consumer reviews.  Overall, Yelp urges the California Supreme Court to reverse the Court of Appeals’ decision because this case provides an opportunity to abuse the court system in order to stifle speech on the Internet.

In Hassell’s Answering Brief on the Merits, Hassell argues that invoking the First Amendment, the Due Process clause, and the federal Communications Decency Act will not help Yelp escape a court order preventing them from republishing postings that have been judicially determined as defamatory.  Hassell cites to both cases from the U.S. Supreme Court and the California Supreme Court, who have consistently held that defamatory speech falls outside of the scope of First Amendment protections.  For example, U.S. Supreme Court cases, Ashcroft v. Free Speech Coalition and Keeton v. Hustler Magazine, Inc.; and Balboa Island Village Inn, Inc. v. Lemen, a California Supreme Court case, all demonstrate that false statements are not protected from any constitutional provision because they harm both the subject of the false statements and the readers of the statement.

Overall, Hassell declares that the same prohibition against speakers to create defamatory speech should apply to anyone, like Yelp, who is distributing defamatory speech.  Hassell argues that she tried to resolve this matter out of court with both Yelp and Bird, but since she was unsuccessful to coming to a reasonable agreement, she sought the relief that she is rightfully entitled to from the court.


Potential Lasting Effects on Online Forums 

Any action the California Supreme Court takes will have a lasting effect on the limitations of free speech online.  If the California Supreme Court determines that forum administrators, like Yelp, bear the responsibility of monitoring whether a consumer has posted a negative false review that is considered defamatory, businesses can easily have reviews removed by the forum administrator if they believe that the review is offensive and inaccurate.

Anytime there is a negative review that a business believes is defamatory, the business can just go to court in order to receive a declaration telling the forum administrator to delete the personal reviews made by consumers.

Although this decision helps those who want to protect their businesses from false negative reviews, the decision may also create infringements on consumers’ freedom of expression because there is a possibility that their accurate descriptions of their experiences can be declared defamatory and censored by a court.

The restriction of past consumers to freely express their negative opinions of a business can also have an effect on future consumers, because future consumers may be attracted to a business who did something to improve its consumer experience.  Also, without seeing constructive criticism from consumers, businesses will not know how to become better or have an incentive to change.  An honest review is an important asset to a business because it can encourage more foot traffic or it can provide the business with an opportunity to better cater to its consumers.  Although it is unknown how the California Supreme Court will rule, it is likely that this decision will have a lasting effect on how consumers use social media and online forums to review their experiences.

Image by Steve Rhodes (via

A 15 million dollar clock: How much is too much?

In September 2015, Ahmed Mohamed, a freshman at MacArthur High School in Irving, Texas, brought a homemade digital clock to school. Ahmed showed his creation to his engineering teacher, who cautioned him not to show it to others.

Ignoring this advice, Ahmed set the time, which caused an alarm to ring during class. Understandably, his English teacher confiscated the gadget. Even though Ahmed insisted it was only a clock, his teacher notified the school principal because she believed the device “looked like a bomb.”

Ahmed was pulled out of class and questioned by five police officers, the principal, and the assistant principal. They regarded him as both “non-responsive” and “passive aggressive” when questioned. Deemed uncooperative, he was handcuffed, fingerprinted, and interviewed again at police headquarters. Finding no malicious intent, Ahmed was soon released to his parents. While no criminal charges were filed, he was suspended for three days.

The Irving Police Department conducted its investigation of the suspicious-looking item because they believed it to be a “hoax bomb.” They claimed their inquiry was meant to determine Ahmed’s intent for bringing in the device, not whether or not the device was a bomb, as made evident by the fact that the school was not evacuated. Under Texas law, it is a misdemeanor if a “person knowingly manufactures, sells, purchases, transports, or possesses a hoax bomb with intent to . . . (1) make another believe that [it] is an explosive or incendiary device; or (2) cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.”

Since the incident, independent bloggers have reverse-engineered the homemade clock, and concluded that the device was a commercially available alarm clock, from which Ahmed simply removed the plastic casing and placed the open wires into a pencil box.

When Ahmed’s arrest was first reported, it received immense attention on social media. According to the Los Angeles Times, Topsy, a social analytics site, reported close to a million people (including President Obama, Hillary Clinton, Sergey Brin, Mark Zuckerberg, and various NASA scientists) outpoured support through the hashtag: #IstandwithAhmed. The news focused its narrative on how this inventive, hard-working, and industrious young man was unjustly harassed simply for being a Muslim of Sudanese decent. Supporters claimed the situation typified racism and Islamophobia in America, and many vilified the teachers, the school officials, the school district, and the police for anti-Islamic sentiments and racial profiling.

The school district charged media outlets as presenting a completely one-sided report of the incident. It seemed to officials that Ahmed spoke more with reporters than to the officers investigating the issue.

Both Beth Van Duyne, Irving Mayor, and Jim Hanson, a former member of the United States Special Forces and now Executive Vice President of the Center for Security Policy, said the situation was handled properly because the teacher was reacting to the device, not the child who brought in the device. Larry Boyd, Chief of Police for Irving, said the situation would have been handled in the same exact manner, regardless of the religion and nationality of the student. Thanks to the U.S. Department of Education’s Safe Schools – Healthy Students Initiative, every student is held to the same stringent zero tolerance policies found in most school districts.

To emphasize this point, the school sent a letter to all parents, reminding them to tell their children to report any suspicious items or behaviors. The school stressed that such precautions were necessary to protect the students from potential or threatened harm. The school’s statement read that if something is out of the ordinary, “it is [important] to immediately report any suspicious items and/or suspicious behavior . . . to any school employee so [it] can [be] addressed . . . right away. [The school] will always take necessary precautions to protect our students [and keep our school community as safe as possible].”

Now, the Mohamed family seeks to file a civil suit against the city and school officials of Irving. Ahmed’s attorneys allege civil rights violations, which caused severe psychological trauma after Ahmed’s “reputation in the global community [was] permanently scarred.” They are demanding relief in the amount of an astounding $15,000,000 (and, of course, an apology).

Inconsistent with his claim of a scarred global reputation, after his story went viral, invitations poured in for Ahmed to visit Facebook, attend a Google science fair, accept an internship with Twitter, meet with Sudanese President Omar al Bashir, pose with the Jordanian queen at a United Nations Summit, appear on various television programs, and go to Astronomy Night at the White House, where the president hosted astronauts and students to promote science and technological careers. In addition, Ahmed and his family have since moved to Qatar, where Ahmed accepted a generous scholarship to join the Young Innovators Program under the Qatar Foundation for Education, Science and Community Development.

It is unknown whether Ahmed will continue to pursue this civil rights lawsuit. If he does, hopefully the city and school officials of Irving will not reach a settlement with him just to avoid another social media outcry. He may have been upset about being placed in handcuffs, but under the circumstances, the school district acted reasonably and within the guidelines of Texas law, the Safe School – Healthy Students Initiative, and MacArthur High’s Code of Conduct.

YouTube Kids – Luring Kids in, One App at a Time


Whether you’re an overnight sensation like Justin Bieber or you’re uploading a tutorial on how to apply the perfect make up; YouTube has become the go-to site for watching all the hottest videos. Technologically speaking, the cyber world has significantly changed over the years, especially with the Internet now being easily accessible from mobile devices. But the most alarming and overlooked trend is the ubiquitous use of the Internet by children.

Today, children use iPhones, tablets and computers to access the Internet as early as three-years-old. With the amount of time children spend online, some have become skilled navigators. The Internet offers children a lot of great advantages. Kids can access educational videos and gain exposure to new concepts and ideas all at the click of the mouse. However, everyone knows as great as the Internet is, there are a ton of risks associated with its use. A particular drawback is the privacy issues that come with such widespread access to information. Children on the Internet alone creates a lot of public concern. Not to mention the development of new devices including cell phones, tablets, and applications (apps), that have now created an alterative way to expose children to a number of privacy related issues online.

On February 23, 2015, Google launched a new app called “YouTube Kids” that is specifically tailored towards the younger YouTube audience. The app creates a site that allows children to search and explore YouTube more easily and safely while locating the videos they want. The app is currently available in the United States for free and can be downloaded on iOS and Android devices.

YouTube Kids features four categories of videos, which include: child-friendly videos; educational clips; music; and shows. The categories raise a number of questions regarding what is going to be done to protect the privacy of children using this app.

How is Google going to receive consent from parents before allowing children to access the app? Will there be ads marketed towards children using the app? If the app is to be used solely by children, what filters are going to be implemented to make sure there are age appropriate videos? Also, it is going to be interesting to see if children are able to upload their own videos, and if so, what type of sensitive information will this potentially disclose? These questions are just a number of those parents may pose; questions that hopefully parents are seeking the answers to by doing research before allowing children to access any services linked to the Internet.

The law that regulates children’s privacy online is the Children’s Online Privacy Protection Act (COPPA). Passed in 1998, Congress created the statute to ensure online service providers and organizations comply with certain standards to help protect children’s information online. This pertains to companies that collect the private information, or data, of children under the age of thirteen online. COPPA does not apply to operators that do not collect information. In other words, COPPA protects information that is gathered from children, but not necessarily the information collected about children.

In 2013, COPPA strengthened children’s privacy protections online by expanding some requirements to ensure the law reflected the new technology that has been developed since 1998. The expansion covers tablets, cell phones and the apps that can be downloaded onto these devices. The law applies to sites and apps that are geared towards children and collect the data of children under the age of thirteen. COPPA also applies to sites and apps that have general audiences but have actual knowledge that data is collected from children under thirteen.

COPPA is complicated. Essentially, the law aims to provide notice to parents that a child’s personal information is going to be collected, consent to verify the collection is authorized, and to let the parent know the child’s information is going to be protected. The law goes into depth as to all the requirements, but varies depending on the specific service provided and what type of information is collected. In any case, if a site or app is collecting a child’s personal information, the parent has the power to access the information collected, to demand the cease of the collection of information at any point, and requires the data collected be deleted at any time.

Looking closely at the language of COPPA, the law does not require that operators investigate the age of the children using their sites or apps. As long as a company does not collect information from children under thirteen and explicitly says so, the company does not have an obligation to make sure children under thirteen are not actually using their service. This means parents are responsible for making sure children are observed while online and are not consenting to use a site or app themselves. The Federal Trade Commission (FTC) is the governmental agency that regulates unfair and deceptive practices against consumers, and this includes practices against children.

Since YouTube Kids is definitely geared towards a young audience and if Google plans to collect the information of the children using the app, YouTube Kids will need to comply with COPPA. Specifically, in regard to consent. But the concern still remains regarding how parents are going to be given notice about data collected on their children, and what kind of consent is appropriate for an app like YouTube. Currently, consent standards that adhere to COPPA include: emailing a parent; requiring a permission slip that is signed and sent back; a 1-800 number that allows a parent to call in to confirm; video-conferencing; governmental identification check; or any other reasonable efforts to obtain consent. This also poses the question as to how many times consent is going to be needed and what efforts are in place to assure the children are not consenting themselves. Realistically, there is no definite way to prevent children from accessing the Internet or downloading apps in general, besides parental oversight. However, YouTube Kids is going to have to get ready for any issues that may arise with consent.

Another issue is the area of marketing. If adults are being targeted with specific ads, children could very well be susceptible to the same. Users of the app have already mentioned child-friendly ads are used pervasively. This also raises the question as to whether third party companies that are advertising on the app are also complying with the same level of privacy standards as Google. Additionally, it also becomes a concern if parents will have to provide consent to allow these third parties to collect the child’s information as well.

The content available on YouTube Kids is going to be another issue that parents are going to have to examine. Depending on whether children are going to have the capability of uploading their own videos, COPPA now categorizes voice and video uploads as personal information. Thus, if children can upload content on YouTube Kids, there will likely be issues regarding how consent is obtained, and if it will be required just once or every time a video is uploaded.

Another obvious concern is who is going to be able to access and upload videos onto YouTube Kids if there are people out there specifically looking to target children with inappropriate content. On the other hand, there is optimism about Google taking appropriate measures to ensure children are protected and the content on YouTube Kids is filtered. This is also mentioned as a positive move in the right direction, since a number of Internet and app providers moved away from offering any child-friendly services after COPPA made updates to the law. The app also provides preferences for parents including removing the search bar entirely, thereby only allowing children to watch videos. However, users of the app say the parental controls are not secured by password and therefore give children that are old enough to read the opportunity to change the settings. The comments are also disabled which is another filter YouTube Kids offers; probably to remove any inappropriate content and potentially to prevent cyber-bullying.

Whatever Google has in store for providing online services tailored for children, offering YouTube Kids through the app is one way to test through trial and error. This includes the number of privacy issues that will be present if and when the app moves to the web. For now, COPPA offers at the very least protective measures to keep children’s information collected online private. This framework is not perfect and may leave room for leeway by operators, however it is better than nothing. Either way, there is still the possibility that children under thirteen are using YouTube now. If so, hopefully Google is tailoring this app to the younger children who have not accessed the Internet yet. It will be interesting to see how YouTube Kids complies with COPPA, and if not, the FTC will be watching closely.

Celebrity Nude Photo Leak: Just One More Reminder That Privacy Does Not Exist Online and Legally, There’s Not Much We Can Do About It

FilmOn August 31, 2014, the Internet nearly exploded.  A website called uploaded nude images of over 100 women, including many well-known celebrities.  Though this was not the first incident of private celebrity photos (or videos) being made public on the Internet, it was the largest leak of its kind to happen all at once.  The intimate photos posted on 4chan were taken from each celebrity’s personal iCloud account.  A few days after the leak, Apple confirmed that individual iCloud accounts were hacked in a “targeted attack” where hackers used “brute force” to gain access to individual usernames and passwords.  Since the initial leak, several more rounds of stolen private celebrity photos have been released by

Additionally, less than six weeks after the initial 4chan celebrity photo leak, a website called posted a database of at least 100,000 Snapchat photos which were intercepted by hackers and then later downloaded onto 4chan’s website.  Snapchat is an app where users send photos or video clips to their friends which self-destruct within 10 seconds of receipt.  Once the database was posted on viralpop, users of 4chan downloaded the files and created a searchable database where people can find photos by searching for Snapchat usernames.  Aside from the obvious privacy concerns of users who believed that their photos were deleted, the Snapchat leak is perhaps even more disturbing than the celebrity photo leak because many of the nude photos released are of underage boys and girls (half of Snapchat’s users are between the ages of 13 and 17).  It is not clear whether Snapchat will be sued over this incident, though Snapchat maintains that the leak originated from third party apps which Snapchat’s Terms of Use expressly prohibits.

In the weeks following the celebrity nude photo leak, a heated discourse emerged from online and traditional media outlets and from the celebrities themselves via social media.  While most people agree that it was a criminal breach of privacy when someone hacked into the iCloud accounts of celebrities and publicly exposed their private pictures, some also believe that the victims of the breach should take responsibility for their part in the incident.  These critics believe that the celebrities should have taken better care to secure the photos or not taken nude photos in the first place, because they knew that being famous would make them a target for this type of attack.  Most of the celebrities involved in this breach were women, which has led some critics to suggest that this violation of privacy is yet another example of female oppression in our male dominated society.  This sensationalized exploitation reminds women that they have no right to privacy in the age of the Internet when it comes to their own bodies.  Actress Jennifer Lawrence, a victim of multiple rounds of the 4chan photo leaks, said in a recent interview that the leaks amounted to a sex crime and accused people who viewed the photos of perpetuating a sexual offense.  It is important to note that less than a handful of male celebrities have had private photos stolen from their iCloud accounts and released as part of this celebrity photo leak.  Also, though not surprisingly, the public indignation about the incident is primarily centered on the victims we recognize.  Very little of the discourse even refers to the hundreds of photos of not-famous women which were also released in these leaks.

We have also learned from this massive breach that there is little legal recourse for victims of hacking.  After the photo release, celebrity victims turned to lawyers and copyright infringement law to resolve their problem.  Martin Singer represents a group of unnamed celebrities whose photos were released on 4chan.  Singer sent a letter (and released it to the press) threatening to sue Google for over 100 million dollars for not acting quickly enough to remove links to the photos from its search lists.  Singer’s letter cites the Digital Millennium Copyright Act of 1998 which provides a safe harbor from liability to internet service providers who do not have actual knowledge that its users are posting “infringing” materials.  In the letter, Singer maintains that Google has had actual knowledge of the infringement by its users because Singer himself sent Google “dozens of notices” since the initial photo leak demanding that Google remove the content.  Google has since responded that it removed thousands of photos within hours of each request and closed hundreds of user accounts.

It may seem odd that Google is the target of this lawsuit because Google is primarily a search engine; Singer’s letter does not accuse Google of hacking into the iCloud accounts or posting the leaked photos online for all to see.  But, aside from having deep pockets, there is another reason that Singer could be targeting Google: the real photo hacker(s) are unknown and may never be discovered.  Other hacking incidents over the past couple of years highlight the near impossibility of prosecuting these types of criminals.  Numerous times, anonymous yet extremely sophisticated hackers have stolen sensitive customer information from large retailers and even banks, without any legal repercussions.

Although there are a host of laws in place that criminalize hacking, because of the nature of the crime and the nature of the Internet itself, hackers are rarely punished.  Most attempts to curb photo leaking on the Internet do little to protect victims.  Recently, California enacted laws that criminalize “revenge porn,” similar to laws already in place in 12 other states.  Both SB 1255 and AB 2643 were signed by Governor Brown on September 30, 2014.  Largely, these laws aim to prevent jilted former lovers (or anyone else who might have nude photos of someone) from posting private photos online to publicly humiliate the victim.  SB1255 states that a person who intentionally distributes naked photos or videos of a person engaging in a sex act “knowing that the depicted person does not consent, is guilty of disorderly conduct.”  AB2643, alternatively, gives victims of revenge porn the right to file a civil action against the perpetrator who distributed the material without the victim’s consent, provided that the victim suffered severe emotional distress.  Although these laws are a significant step in the right direction toward protecting individual privacy, the circumstances under which these laws apply are very narrow, and thus not very effective.  The laws only apply to the person who makes the recording, not third party distributors who publish the photos for all to see.  Also, if the victim took the recording or photo of him or herself, these laws do not apply.  Neither the victims of the leaked celebrity photos nor the victims of the stolen Snapchat photos will benefit from these laws.  The frustrating reality is that there is little to no legal recourse for many victims of these types of privacy breaches.  It is unclear how the law will develop to provide greater individual privacy protections around the Internet in the future, but as it stands now, it is doubtful that any law could fully protect privacy on the web.  For now, it seems the only way to protect your privacy is to rely on yourself.

Maintaining complete privacy over material stored or sent online is undoubtedly impossible to achieve, but for those who enjoy the convenience of technological innovations, there are a few simple steps one can take to help increase the protection of their privacy.  First, if you choose to use cloud storage systems to store personal photos or information, be sure to take advantage of the highest security system that that provider allows.  Since the celebrity photo leak, Apple and other companies have written about how to do this.  The most important take-away for protecting any online account is to have effective password protection; passwords that are difficult to crack, using different passwords for different accounts, and changing passwords regularly.  Second, if you are using internet capable devices to take private photos, be sure to disable any feature that automatically uploads photos to a cloud storage system or social network application.  In other words, store private photos locally on devices or external hard drives that only you can access.  Third, do not send private photos to third parties via electronic device unless you are absolutely sure that you can both trust that person (today and in the future) not to share the photo and trust that the person’s devices and online accounts are also secure.  The bottom line is that it only takes a few taps on a smartphone to make something very private turn into something very public, and once something is online, it is out of your hands forever.  With so few effective legal protections in place, it is up to each individual to vigilantly take precautions to protect private material.

More Than Meets the Eye with New Google Contact Lenses

contacts patent applicationTechnology informs privacy.

This is the lesson we relearn every time a company puts out a new product that changes the way we interact with the world and each other.  The recent disclosure of Google’s filings with the United States Patent and Trademark Office last year for a contact-imbedded “image capture component” (read: camera) caused a flurry of commentary by privacy hawks and tech fans alike.

The proposed contacts will contain a camera, sensor, and control circuit, and will likely communicate wirelessly with a remote device (smart phone) to store and process the pictures, or send them straight to the cloud.  The contacts appear to be controlled by the included sensor to take pictures via eyewinks or other eye gestures, which will make using the contacts virtually imperceptible to others.

This raises the question: if the contacts are invisible to others so that it’s impossible to know if someone is wearing them, how can you know if they are being used to record you without your consent?  Traditional cameras and smartphones require the user to obviously point and click to take a picture, giving you the opportunity to get out of the frame if you do not wish to be photographed.  Even Google Glass wearers are obtrusive enough that they provide notice to those around them that they might get recorded.  In contrast, Google Contacts would provide no such notice to others.  Someone wearing Google Contacts would be free to snap away, and those around them would be completely oblivious.  These issues continue to draw a bright line between those understandably worried about the privacy concerns the futuristic contacts will impinge, and those excited about the more positive potential applications of the new mini cameras.

The debate is nothing new.  As far back as 1890, Warren and Brandeis wrote their famed piece on privacy inspired by the invention of the handheld instant camera.  Prior to this, anyone who wanted their picture taken had to pose for a long time, and so only those who were really into having their picture taken would put up with the hassle to do so.  With the advent of the handheld camera, for the first time a camera owner could snap your picture without your consent.  Warren and Brandeis worried about the consequences for privacy in a world where all anonymity is lost because anyone may take your picture at any time.

The emergence of Google Glass sparked privacy concerns over the potential for well-equipped strangers to record you without your consent. In response, some establishments have banned Google Glass at the door outright in an effort to ease their customers’ minds and prevent situations where a Glasshole enrages other patrons by blatantly filming them against their wishes.  The danger of Google Contacts is they bypass the social issues of Google Glass and can be worn invisibly by anyone.  If they do indeed come to market, what remedies will be available to those who wish to go about their lives unrecorded?

Although you usually do not have a reasonable expectation of privacy in a public place that does not mean that you give up all privacy protections when you step out your door.  A celebrity is expected to put up with a certain amount of publicity for their private affairs, and they make the decision to give up their anonymity in exchange for the other benefits celebrity offers.  But Google Contacts have the potential to make us all celebrities without our permission.  We should not have to give up our anonymity without our consent.

Additionally, while it appears the contacts do not currently have video recording capability, such technology is likely not far off.  While public video cameras are increasingly becoming an unfortunately ubiquitous fact of life, there is a difference between being recorded by a building-mounted camera without sound while you walk down the street, and being recorded by the person at the next stool over while you talk with your friend at the bar.  Even absent video capability, the idea of a user at a bar or restaurant secretly taking photos and processing them instantly with facial recognition software in the cloud is enough to raise anyone’s privacy hackles.  Google currently prohibits facial recognition software on Google Glass, but it is more than probable that third parties will implement such software in the near future.

Even with a ban on facial recognition, Google is a company that makes its money off of targeted advertising.  It is hard to believe that the company would not employ some analytics to the camera on Google Contacts, and there would be no way to know how many were running at any given time.  The Contacts would also allow Google to stream ads directly to your eyeballs, and while wearing the Contacts there would be no way to look away.  This would enable Google to charge a premium for Contacts ad space, increasing its incentive to analyze everything that the Google Contacts wearer saw.

Furthermore, the rise of Big Data and the drive to collect anything and everything and store it in the cloud for future use, in addition to the NSA’s interception of massive amounts of customer data from Silicon Valley companies, would combine with Google Contacts to create a recipe for privacy violations of enormous proportions.

All this brings us to the conclusion that perhaps, just as Warren and Brandeis felt, we need a new conception of privacy.  The thought of Google Contact users capturing pictures of those around them without their knowledge just feels creepy.  While we all admittedly give up a certain amount of privacy when we walk out our door each day, there must be a limit to what we give up.  We still maintain the right to associate with others, and speak our minds freely without being constantly recorded.  If we are to be recorded, then we need to be notified and given an opportunity to consent.  The problem with camera contacts is that they are invisible, making any effort to enforce or regulate their usage a daunting task.  While they undoubtedly would have some exciting applications, their potential for abuse just seems too great.