Google: the endemic threat to privacy.

Author:Sarpu, Bridget A.
Position::Risks of facial recognition software
 
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  1. Introduction

    In April 2012, Google announced "Project Glass" on its social networking service Google+ (Google Plus). (1) The product, later changed to "Google Glass," is advertised as a wearable computer with a head-mounted display. (2) Imagine a pair of glasses that projects a computer screen millimeters from your eye. The company indicated that it wanted to build a technology that was "seamless, beautiful, and empowering; [t]o share the world through your eyes; (3) [t]o get answers and updates, instantly; [t]o be there when you need it, and out of your way when you don't." (4) Google Glass will allow you to take pictures, record what you see hands-free, share what you see live, obtain directions, send messages, and ask whatever is on your mind. (5) As the technology develops, more and more possibilities arise: Imagine walking up to a stranger on the street, having the glasses scan the individual's face and instantly provide information regarding the person. (6) The Google Glass on board camera is capable of recording video and does have the potential to utilize facial recognition software (7), even though Google has chosen not to provide any facial recognition capabilities in Glass for its first generation project. (8)

    Facial recognition technology consists of software that "can pick someone's face out of a crowd, extract the face from the rest of the scene and compare it to a database of stored images." (9) "Facial recognition software is based on the ability to recognize a face and then measure the various features of the face." (10) Typical facial "landmarks" or "nodal points" that make a face distinguishable include the distance between the eyes, the width of the nose, and the length of the jawline. (11) The primary users of facial recognition software have been law enforcement agencies. (12) They have used the software to capture random faces in a crowd or have installed police cameras throughout high activity neighborhoods in attempt to reduce crime rates. (13) Other users have included the United States government using the software for the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program, which is used to identify travelers trying to enter the United States. (14) Some government agencies have used the system as a means for security, in order to prevent voter fraud. (15) With the impressive potential uses of facial recognition software, there also comes great concern involving privacy rights and privacy infringement. (16)

    Google Glass has made the decision not to include facial recognition in the Google Glass device, even though the glasses could have those capabilities. (17) Their choice to not include the technology rests solely on the profound questioning of privacy issues. (18) In a Google+ article, Project Glass noted, "[a]s Google has said for several years, we won't add facial recognition features to our products without having strong privacy protections in place. With that in mind, we won't be approving any facial recognition Glassware at this time." (19)

    Developers have noted that it may be possible to buy and load applications, called "Glassware," without needing Google's permission and that certain applications could provide facial recognition service. (20) Google claims that they do not promote the use of such apps. (21) Even though Google has claimed to have no immediate plans to offer face recognition software, the open-ended possibility has left lawmakers, legislatures, and people "freaking out." (22)

    Since the announcement of the Project Glass initiative, there have been numerous articles written, letters constructed, discussions, and even legal bans regarding the unreleased glasses. (23) Some companies have even taken the liberty to design programs to stop Google Glass. (24) Every debate and concern revolves around Google Glass and the issue of privacy. (25) With numerous and current federal and state statutes in place prohibiting the unknown photographing and videotaping of others, Americans wonder whether the new Google Glass technology could infringe on their privacy. (26)

    This note explores the legal implications of facial recognition software specifically with the Google Glass technology and the potential privacy concerns that may arise. This note begins by outlining a brief history of privacy, including the birth of privacy in American and modern privacy law as it has evolved with technology. Also, the history incorporates some of Google's company history and involvement with privacy concerns over the recent years. This note then explores technology already using facial recognition software and what it really means for the public if Google were to ever choose to use the software permanently in Glass. Finally, this note assesses some of the potential solutions already being discussed to ensure Google Glass is used safely. It also discusses potential resolutions society may consider when Google Glass is finally released to the public.

  2. History

    1. The Birth of Privacy in America

      In America, privacy has played a critical role in promoting free speech and developing important institutions throughout the country. (27) Most scholars consider Samuel Warren and Supreme Court Justice Louis Brandeis's law review article, The Right to Privacy, (28) as the first attempt to explain American privacy jurisprudence. (29) The co-authored article was published in response to the newest technology of the time, Kodak cameras, which took "instantaneous photographs" that the authors regarded as invading "the sacred precincts of private and domestic life." (30) According to Warren and Brandeis, these cameras weakened the public's right to privacy by "rendering] it possible to take pictures surreptitiously." (31) In order to protect the public and prevent the "evil of the invasion of privacy," the scholars, using common law principles, developed a right to privacy that would protect the "privacy of the individual." (32) After evaluation different doctrines of law like trade secret and intellectual property, Warren and Brandeis, formed "the right to be let alone." (33) Warren and Brandeis excluded the right to privacy for those "who... have renounced the right to live their lives screened from public observation," since parts of society existed in the public eye. (34) In their opinion, candidates for public office, a person in a public position, or anyone who "makes their doings legitimate matters of public investigation," renounced the right of privacy. (35) The scholars concluded that the right to privacy was for "those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity," (36) and that "some things all men alike are entitled to keep from popular curiosity, whether in public life or not." (37)

      B.Modern Privacy Law: Federal

      Following the Warren and Brandeis article, numerous courts used the new "right to be let alone." (38) Specifically, Dean William Prosser, who served as a reporter for the Restatement (Second) of Torts, concluded "law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff ... that each represents an interference with the right of the plaintiff. 'to be let alone.'" (39) The four torts that Prosser identified were: (1) public disclosure of private facts, (40) (2) intrusion upon seclusion, (41) (3) appropriation of name or likeness, (42) and (4) false light. (43) Prosser's privacy torts became the most widely accepted model of American privacy interests and numerous states accepted these torts through the adoption of the Restatement (Second) of Torts. (44)

      After Prosser's privacy torts, generally, a person who is photographed in public is essentially left without remedy. (45) Intrusions upon seclusion tort and public disclosure of private fact tort are the most suitable torts used to protect against being photographed without permission. (46) In Gill v. Hearst Pub. Co., (47) the court determined that a violation of privacy under the intrusion upon seclusion tort only applied when the victim was in a private location. (48) A reporter secretly photographed a couple sitting in a park engaged in passionate embrace for an article reporting how love makes the world go round. (49) The couple, assuming they were alone in the park, wished to keep their affections private and was not pleased by the photograph and article in the Harper's Bazaar. (50) The couple sued under privacy torts. (51) However, mirroring Prosser's newsworthiness standard, the court found that when an individual exits their home, he waives his right of privacy. (52) Gill v. Hearst also interpreted the public disclosure of private facts torts to only apply when the matter released had no newsworthy value. (53) The Gill court noted that the right "to be let alone" is not an absolute right but must be balanced against the public interest of obtaining news and information and upholding the constitutional guarantee of freedom of speech. (54)

      In his dissent, Justice Carter rejected the majority's opinion and noted "there is no reason why the publisher need invade the privacy of John and Jane Doe for his purpose." (55) Quoting Warren and Justice Brandeis, Justice Carter proclaimed, "These private citizens, who desire to be left alone, should have and enjoy a right of privacy so long as they do nothing which can reasonably be said to have news value." (56)

      Most privacy cases after Gill have supported the majority's approach in finding that privacy does not exist when an individual is in the public eye and is newsworthy. (57) After the decision in Florida Star, (58) judges relied on news editors to determine newsworthiness, recognizing that "a photograph with even the slightest social value is publishable without fear of liability." (59) The Supreme Court's decision also determined that the right to an individual's privacy in public is greatly weakened. (60)

      Basically, under the current...

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