In the process of responding to a Tad Donaghe thread on Google+ regarding one aspect of Google Glass, I began wondering about the legal implications of Google Glass – specifically, regarding wiretapping.
While wiretapping itself is defined as getting information from a telephone line (remember them?), section 632 of the California Penal Code raised some questions that I, not a lawyer, could not really analyze meaningfully. Here is that portion of the California Penal Code.
632. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
(b) The term “person” includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.
(c) The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.
(e) This section does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.
(f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.
I realize that lawyers can quibble over the definition of “confidential communication” and “public gathering,” and that companies can skirt this by selling (wink wink) “hearing aids.” But this seems to be a case in which technology has outstripped the law.
Or maybe it hasn’t. I personally do not believe in passing new laws when the old laws cover the situation in question. But perhaps in this case the old law needs a bit of clarification.
As noted above, I am not a lawyer. I wondered if anyone else had mused on a possible connection between Google Glass and California Penal Code section 632. It turns out that Edward Champion has done exactly that. In a March 14 list of “Thirty-Five Arguments Against Google Glass,” Champion included argument number eighteen.
It will create problems with consent.
Twelve states in America legally require that all parties consent to the recording of a telephone call. Most of these state laws were devised when telephones were landline only. (For example, California Penal Code § 632(a), which regulates one party consent for telephone recordings, was legislated in 1967 as the Invasion of Privacy Act.) It never occurred to California state legislators in 1967 that phones would be cordless or that conversations would occur more frequently in cafes and restaurants outside of private corded lines. Much like the Stored Communications Act described in Argument One, this is another example of legislatures simply not acting fast enough to account for rapid technological advancement.
Unfortunately, consent can no longer be regulated in the old way. In the last few months, Google asked users to permit Google Search on Android-powered phones to record audio and take pictures and video with a new update. If Google can do this with the Search app, what’s to stop Google from seizing your consent with Glass?
This goes back to the passive-aggressive ultimatum in Argument Twelve. Google realizes that waiving consent “may not be for everyone at this time.” But since Google is the one unveiling the fancy glasses, it will be more than happy to strip you of rights you didn’t know you had through a sneaky permissions acceptance.
Oh, and if you were checking out Tad’s thread, look at Arguments Six and Twenty-One.
Now it does not appear that Champion is a lawyer either, so his discussion of California Penal Code 632 may be as speculative as mine is. So we may not see the ramifications of this until someone – perhaps a Shotwell’s Bar patron – takes a Google Glass-wearing person to court.
Or perhaps not. In the Google+ thread that I mentioned above, Tad Donaghe offered the following comment:
AR and associated technologies are going to be incredibly disruptive to society.
The end of privacy is the end of pretty much ALL privacy. The world will be a totally different place in 20 years.
We live in interesting times.